CITATION: R. v. Zolman, 2020 ONSC 6611

COURT FILE NO.: CR-20-40000002-00AP

DATE: 20201029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul M. Alexander, for the Crown

HER MAJESTY THE QUEEN – and – GENNADI ZOLMAN Appellant

Julianna Greenspan, Bradley Greenshields, for the Appellant

HEARD: September 29, 2020

ALLEN J.

REASONS FOR JUDGMENT (On a Summary Conviction Appeal)

OVERVIEW

[1] This is an appeal brought by the appellant, Gennadi Zolman, of a decision by Justice L. Pringle of the Ontario Court of Justice. The trial judge convicted Mr. Zolman on two sexual assault offences alleged to have occurred on Friday, August 25, 2017. The charges were brought in relation to each of two complainants, a mother and daughter.

[2] Mr. Zolman was employed as an acupuncturist at a rehabilitation facility. His convictions arise from a sexual assault of the daughter, who was 18 years old at the time. The second conviction pertains to a sexual assault of the mother, age 53. The mother was a former patient of Mr. Zolman.

[3] Mr. Zolman testified and denied engaging in any sexual touching or sexually inappropriate discussions with either the mother or daughter.

[4] The trial judge convicted Mr. Zolman on the daughter’s allegations that Mr. Zolman touched her genital area and demonstrated on her body how to masturbate. Concerning the mother, Mr. Zolman was also convicted of touching her genital area and demonstrating on her body how to masturbate.

[5] The Crown’s view is that Mr. Zolman’s evidence was straightforward, unchallenged on cross-examination and consistent with other evidence. The defence argues that the complainants’ allegations were nothing more than “self-serving nonsense, based in a fairy tale rife with inconsistencies, deception and collusion”.

[6] This is solely a credibility case.

LEGAL PRINCIPLES

[7] When the complainant and accused testify and their credibility is at issue trial judges take guidance from the tests set down by the Supreme Court of Canada in R. v. W. (D.):

(a) if the trier of facts believes the accused’s evidence, the trial judge must acquit;

(b) even if the trier does not believe the accused’s evidence, but is left in reasonable doubt by it or any of the other evidence, the trier must acquit; and

(c) even if the trier is not left in doubt by the accused’s evidence, the trier still must consider it and all of the evidence and ask themselves whether, on the basis of the evidence which that is accepted, the Crown has proven guilt beyond a reasonable doubt.

[8] The trier of fact must be mindful that their determination not reflect a credibility contest between witnesses and alert that they are not required to accept the defence evidence in full in order to acquit: [R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)]:

In a case that turns on credibility, such as this one, 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.

[[R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23, (S.C.C)]](https://www.canlii.org/en/ca/scc/doc/2008/2008scc24/2008scc24.html)

[9] Summary conviction appeal judges can only interfere with the trial judge’s decision where the conviction is unreasonable or cannot be supported by the evidence; where there is an error of law; or where there has been a miscarriage of justice: [Steven Penney, Vincenzo Rondinelli, James Stribopoulos, Criminal Procedure in Canada, 2nd ed. Chapter 18, at para. 18.40].

[10] An appeal based on an unreasonable verdict is a factual ground of appeal and an appeal based on a miscarriage of justice is a discretionary ground where fairness is the focus of the inquiry. An error in law can be any decision, obviously having contributed to the final verdict, that was an erroneous interpretation or application of the law: [[R. v. Khan, 2001 SCC 26, [2002] 3 S.C.R. 833 (S.C.C)]](https://www.canlii.org/en/ca/scc/doc/2001/2001scc26/2001scc26.html).

[11] Courts have set down guiding principles:

• An appellate court can only intervene if credibility findings are based on palpable overriding error: [R. v. Sanderson 2017 ONCA 470, at p. 163, (Ont. C.A.)].
• An appellate court may only interfere with factual inferences drawn by a trial judge if those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice: [R. v. Dinardo, at paras. 24 – 33].
• Where credibility is a determinative issue, “deference is in order and intervention will be rare”.
• The reasons must explain why the evidence did not raise a reasonable doubt, but it is not required that the reasons be so detailed that they result in an appeal court retrying the entire case on appeal.
• The trial judge need not be alive to and to have considered all of the evidence, or to have answered each and every argument of counsel: [R. v. Dinardo, at paras. 26 and 30].
• A contextual approach must be used, the evidence being considered in the context of all the evidence.
• The reasons must be sufficient to explain the result and to permit effective appellate review: [R. v. R.E.M., [2008] 3 S.C.R., at paras. 15 - 16 and 35, (S.C.C.) and R. v. Sheppard, at para. 28].

[12] The appellate court holds a statutory authority under s. 686(1)(a)(i) of the Criminal Code to reverse a trial court’s verdict where the trial court’s evaluations of credibility cannot be supported on any reasonable view of the evidence. Section 686(1)(a)(ii) authorizes the trial court to set aside a verdict on the ground of a wrong decision on a question of law.

[13] The appellant submits that the trial judge engaged in uneven scrutiny of the evidence. That error arises where the trial judge applies a different and stricter standard of scrutiny to the defence evidence than to that of the Crown. Courts have made it clear it is difficult to succeed in this argument.

Uneven scrutiny of the evidence is a difficult ground of appeal to advance. In order to succeed with an argument that a trial judge applied a different and stricter standard of scrutiny to defence evidence, it is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to set out expressly legal principles relevant to that credibility assessment. Instead, an appellant must point to something in the reasons or elsewhere in the record that makes it clear the trial judge applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[R. v. Orton, [2019] O.J. No. 2125, at para. 23, (Ont. C.A.)]

[14] What lies at the heart of the difficulty in making the uneven scrutiny argument is the fact that:

… credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial.

[R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39, Ont. C.A.)].

[15] While appellate intervention is rare in relation to trial judges’ findings when credibility is the central issue, there are credibility cases that call for appellate scrutiny. The Supreme Court of Canada acknowledges that, while intervention should be done sparingly, the rule against appellate intervention is not absolute particularly where there is a concern about the adequacy of the reasons:

I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent.

[[R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474 (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii229/1996canlii229.html)

[16] The court in R. v. Burke concluded that the case before it is one of those rare instances where the trial court’s assessments of credibility could not be supported on any reasonable view of the evidence. Similarly, an earlier decision of the Supreme Court of Canada held:

It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, re-weigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. … That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial.

[[R. v. W. (R.), 1992 56 (SCC), [1992] 2 SCR 122 (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii56/1992canlii56.html)

[17] The accused testified and credibility is the defining issue in this case. A difficult balancing exercise is called for on the part for an appellate court of weighing whether and when it is appropriate to enter the trier of fact’s well-established domain of credibility findings.

[18] The trial judge is obligated to explain their reasons for convicting the accused and to explain rejecting the accused’s denial. The appellate court is required to address three questions in appeals claiming insufficiency of reasons for conviction: (a) do the trial reasons for judgment make it clear to the accused why he or she was convicted; (b) do the reasons provide public accountability; and (c) do the reasons for judgment permit effective appellate review: [R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.) and [R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.)]](https://www.canlii.org/en/on/onca/doc/2006/2006canlii40088/2006canlii40088.html).

THE TRIAL EVIDENCE

The Daughter’s Account of the Sexual Assault

[19] The daughter testified at some length about her troubled past, her prior attempts at self-harm, and her conflicted relationship with her mother. She spoke about problems with anxiety and depression and with being bullied at school. The daughter testified her mental health issues affected her schooling and that she, at the time of trial, was focused on returning to school.

[20] The daughter was involved in a car accident in February 2017. She began receiving treatments at New Wave Clinic on her back, neck and head. She was also suffering from polycystic ovarian syndrome, (“PCOS”) which caused a great deal of menstrual pain which she said worsened after the accident. The mother decided to take her daughter to New Wave for treatment for migraines and other pain. Acupuncture was recommended.

[21] In appointments days before the Friday, August 2017 sexual assault incident, the daughter attended New Wave and Mr. Zolman inserted magnets in her ears. On August 25th it was decided that Mr. Zolman would do acupuncture. The daughter complained to Mr. Zolman of headaches, back pain and numbness in her fingers and feet. Mr. Zolman agreed to treat menstrual pain. The mother mentioned earlier treatment by Mr. Zolman involving the placement of needles in her genitalia which she said helped. Although she had a fear of needles, the daughter told Mr. Zolman she was willing to receive treatment with needles, anything that would help with her pain.

[22] The mother testified that Mr. Zolman said he thought she was over-protective of her daughter and was suffocating her with attention. The daughter said Mr. Zolman then told her mother to leave the treatment room and he asked her (the daughter) to take off everything but her underwear. He instructed her to lie on the treatment table on her stomach. Mr. Zolman left the room while she undressed and then returned. The daughter’s evidence was that after she disrobed, she was only wearing a thong and felt uncomfortable.

[23] Mr. Zolman pressed his palms and fingers from her shoulders to her mid-thigh. He then told her to turn over. He then pressed her lower abdomen and belly button area and asked if it hurt. He next asked her if he could pull down her underwear. She said, “yes, if it’s necessary”. As he pressed in that area, he told her he was checking her nerves.

[24] The daughter testified that Mr. Zolman then removed his hands away and asked her, “Do you masturbate?”. She said she was shocked and responded, “That’s kind of private, but if you must know, yes”. She described that he then asked her whether she had sex. Mr. Zolman then asked her to show him how she masturbated. The daughter said that she did not want to and was very uncomfortable. But she said that she “presumed” it was for the treatment. She asked him, “Do I need to?”, and he said, “Yeah you do”. She felt she had no choice if she wanted treatment for her pain. Mr. Zolman repeated that she should relax and close her eyes.

[25] Mr. Zolman told her he could do the masturbation for her. The daughter testified she was disgusted, scared and uncomfortable, but she responded, “If it’s necessary, yes.” She said she laid like a board while he stimulated her for two to three minutes or more. He told her she could not tell anyone, including her mother, and she responded, “Yeah, mother will probably kill me, and you too”.

[26] The daughter testified Mr. Zolman then started swaying his hips from side to side and rubbing himself against her thumb at the side of the treatment table. His crotch made contact with her thumb and he asked if she liked it. She said, “No.” He then pulled her underwear up and told her to roll over on her stomach and he then left the room. The daughter said when he returned that he put 6 - 12 acupuncture needles in her back and left the room again.

[27] The daughter testified her mother came into the treatment room and she grabbed her hand as she lay on the table. She said that although everything was a “blur”, she did recall her mother asking, “Why is my daughter naked?”, and the daughter heard Mr. Zolman respond, “Isn’t she beautiful?” She also remembered her mother tried to massage her leg and that Mr. Zolman said she was doing it wrong.

[28] The daughter indicated she was on her stomach facing the wall and did not really know what occurred in the interaction between her mother and Mr. Zolman. But she remembered Mr. Zolman saying, “what?”. He then removed the needles from her back and left the room. The daughter said she felt sick and in shock. She said she did not remember how she got dressed. She left the treatment room and waited in the reception area while Mr. Zolman went into the treatment room to show her mother how to do the massage properly. They then left the treatment centre.

[29] The daughter testified that as she and her mother got to their car, her mother said, “Yeah he might be a good doctor, but he’s a “babnik”. “Babnik” is a Russian word for a “womanizer” or a “horny man”.

[30] The daughter gave a police statement on August 30, 2017.

The Mother’s Account of Sexual Assault

[31] The mother had been a client of Mr. Zolman from 2011 at which time he treated her for injuries from a car accident in 2010. She testified that during that period of treatment Mr. Zolman told her she was too nervous about her family and as a young woman she needed to focus on herself after her husband’s prostate surgery and learn how to masturbate.

[32] The mother’s account of what happened to her on August 25th picks up from the point she entered the treatment room and began caressing her daughter’s leg. While the mother was massaging her daughter’s leg, Mr. Zolman told her she was not paying attention to herself. He said she should stop wearing long clothing and should dress in a more feminine way. At this point, the daughter was still lying down on the treatment bed trembling but was calmed by her mother massaging her leg.

[33] The mother said Mr. Zolman told her she was not massaging her daughter properly. He then approached her from behind and stood very close to her. He placed his hand on top of hers while breathing in her ear, she said, “like a dog.” The mother said, “What are you doing?” The mother said Mr. Zolman then walked calmly to her daughter’s shoulders and removed the needles. Mr. Zolman then said, “that’s it, she can get dressed” and then went to his desk.

[34] The mother said she helped her daughter get dressed. Mr. Zolman then told the mother that he would show her how to perform a proper massage for her daughter. At that point, the daughter left the room. Mr. Zolman continued to tell the mother she was a beautiful woman. He told her to lie down on the bed so he could demonstrate on her how to do a proper massage. The mother said she did not suspect anything would happen because she trusted him as a doctor.

[35] The mother took her shoes off and lay face-up on the bed. Mr. Zolman showed her how to massage from the toes. She told him she had pain in her elbow and he said, “Let me massage it a little”. He then asked if he could pull up her dress. She said, “yes, if it’s necessary”. He told her to relax and close her eyes as he massaged her leg. Mr. Zolman told her to set aside her religious inhibitions, that he was going to show her how to masturbate. He told her he needed to pull her underwear down. The mother said she trusted him.

[36] Mr. Zolman put his hand on top of hers and was attempting to make her hand rub her private parts. The mother stated that as she tried to draw her hand away, he contacted her bare skin. He pressed her other hand onto his penis. She said she immediately jumped up and said, “Stop, enough, I have shabat”. Actually spelled “shabbat”, this is a Jewish observance that commences Fridays at sundown when a special dinner is prepared. Mr. Zolman then left the treatment room. The mother put on her shoes and buttoned up her clothing. She testified that as she and her daughter walked to the car, she told her daughter, “He’s a very good doctor, but he’s a babnik”.

[37] The mother gave a police statement on September 7, 2017, and then again on November 21, 2017.

Disclosure of the Sexual Assaults

[38] The mother is observant of Judaism and holds very conservative views about sex and sexuality. She stated that she would confer with the rabbi about what type of sexual activity was acceptable and what was taboo. Her religious view is that women should not have sex until they are married. She stated that she found out from the rabbi that masturbation was not taboo for women, although it was taboo for men. The daughter testified that she had anxieties about her mother’s strict religious beliefs.

[39] The daughter did not want to disclose to her mother the sexual assault by Mr. Zolman. She said her mother was very opinionated and difficult. She did not share her mother’s religious convictions so there were conflicts between them. The daughter believed masturbation was taboo and thought her mother would not be supportive and would not react well to news about the abuse by Mr. Zolman.

[40] On Sunday, August 27th, the daughter decided to tell a friend, Esther Spielman, about the assault because she had had several experiences with sexual assault and reports of this to the police. The daughter told Esther a few days after the assault by Mr. Zolman. Esther advised her to tell an adult who could help her deal with the issue. The daughter took that advice. She asked if Esther could accompany her to the New Wave clinic on the Monday after the assault so she could speak to Tina Lubman, the manager of the facility. Esther agreed but did not remain at the clinic. The daughter felt she and Tina had a good relationship and that she was “there for her”.

[41] The daughter spoke to Tina on Monday, August 28th. The mother and her son were at the clinic that day as well because the son had an appointment. The daughter informed Tina about what happened with Mr. Zolman. Tina advised her to tell her mother. The daughter responded, “How can I? “How can I? I’m terrified she will disown me”. The daughter then said that she could only tell her mother if Tina was with her. They agreed they would give the account together. Tina told her, “We’ll get you help and therapy”. The daughter said after they told her, her mother looked solemn and upset, and asked Tina what they should do.

[42] Tina advised the mother not to ask her daughter any questions, but to come back on Tuesday and they would all meet. It was at that meeting that the daughter told her mother what happened. Tina advised them to go to the police. Tina’s evidence is that the mother had never previously complained to her about Mr. Zolman.

[43] The daughter said it was not until later that day that she found out from her mother that she was also sexually assaulted by Mr. Zolman on August 25th, and that there had been a “situation” in 2011 as well.

[44] When the mother gave her statement to the police, she indicated that she tried to avoid Mr. Zolman. At trial, she testified that she did not avoid him but would only pass him and say, “Hi”. When questioned about this she said both behaviours are true. About Mr. Zolman suggesting masturbation in 2011, The mother testified: “It was discomfort and questions in passing. I was just second-guessing. It was not 100% clear”.

Mr. Zolman’s Evidence

[45] Mr. Zolman is 74 years old and was born in Russia. He has a medical degree from Russia and had practised psychiatric neurology. He began his employment at New Wave where he practises acupuncture. He is not qualified in Ontario to practise as a medical doctor.

[46] Mr. Zolman testified that the mother had been a patient of his and received acupuncture therapy with needles in her shoulders and treatment with magnets. He denied ever treating her for gynecological issues and denied ever discussing masturbation with her.

[47] Mr. Zolman testified that in March 2017, he assessed that the daughter should have acupuncture for her neck and shoulder pain. The daughter did not attend for treatment immediately, he said, because as he learned she was afraid of needles.

[48] When in August 2017 the daughter went for treatment, he recommended a consultation with a specialist in TMJ (Temporomandibular Joint Syndrome), a jaw specialist. Mr. Zolman testified the daughter had decided to have acupuncture. On August 23rd Mr. Zolman treated the daughter with magnets. The daughter and her mother requested that she receive acupuncture treatment with needles.

[49] Mr. Zolman testified that he was unaware the daughter had PCOS. He denied he ever treated anyone for PCOS. Mr. Zolman said that he treated the daughter for pain in her neck only. He inserted five needles around her skull and upper neck. He denied the daughter had to undress at all. He conceded that he asked the mother to leave the room because there was insufficient room for her to remain there with him.

[50] Mr. Zolman explained that he frequently has several patients in different rooms at a time and would move back and forth between them. He testified that on August 25th, he had three patients in addition to the daughter. Mr. Zolman said after inserting the needles in the daughter’s back, he went to wash his hands and went to see one of his other patients.

[51] When Mr. Zolman returned, the mother was in the room with her daughter holding her hand. Mr. Zolman asked her what she was doing, and she said she was giving her daughter a Reiki massage. Mr. Zolman said he told the mother it was dangerous for her to remain in the room when the needles were inserted and the infra-red lamp was on. The mother left the room and he removed the daughter’s needles which ended the procedure.

[52] On the question of whether he inquired about masturbation, Mr. Zolman testified it was none of his business. He was not interested, and he was not interested whether the daughter masturbated and denied asking about this or whether she had sex. He denied pressing against the mother or trying to masturbate her. He denied offering to show the mother how to massage her daughter properly. He said he had never given anyone a massage. He is an acupuncturist. Furthermore, Mr. Zolman testified he would not treat a patient for pain from PCOS unless she had a referral from a gynecologist.

THE TRIAL JUDGE’S REASONS

[53] The trial lasted five days. Both the Crown witnesses and the accused testified. The trial judge acknowledged that credibility is the only issue in this case. She reminded herself of the tests in R. v. W. (D.) before engaging in a recitation and analysis of the evidence.

[54] The trial judge recounted in considerable detail the evidence the daughter and the mother gave about the sexual assaults, evidence about the mother’s and daughter’s relationship, the mother’s past relationship with the New Wave clinic and Mr. Zolman, hers and her daughter’s relationship with Tina and evidence about both the daughter’s and the mother’s disclosures of the sexual assaults. The trial judge set out in detail an account of the Crown witnesses, Mr. Zolman’s and Tina Lubman’s evidence.

Trial Judge’s Analysis

On Mr. Zolman

[55] The trial judge made the following findings on the credibility of Mr. Zolman’s evidence:

• that Mr. Zolman’s evidence looked at through the lens of the presumption of innocence, his denials and distancing from PCOS treatment was understandable if there were no assaults;
• it was hard to assess Mr. Zolman’s evidence in any depth due to the absence of details about his relationship with the mother from his treatment of her in 2011 and 2017;
• that Mr. Zolman was brief in his description of his treatment of the daughter which he said was related to TMJ;
• that it was odd that the daughter did not ask him questions or express any concerns about her treatment with acupuncture needles when he knew she was only 18 and had previously been afraid of needles; and
• that he claimed he had no view about the fact that the mother was a helicopter mother who was always with her daughter, although the mother conceded she did hover too much over her children and testified that even the receptionist told her that she was running after her children too much.

[56] The trial judge decided, based on the first branch of R. v. W. (D.), whether she believed Mr. Zolman’s evidence, that she did not believe his evidence.

[57] Consideration then was given to the second branch of R. v. W. (D.) which applies to circumstances where the trier of fact may not believe the accused’s evidence but is left with a reasonable doubt by it or other evidence. The trial judge determined that she could not completely reject Mr. Zolman’s evidence based on his evidence alone. She correctly noted that she was required to look at whether she was left with a reasonable doubt by Mr. Zolman’s evidence or other evidence.

[58] The trial judge determined Mr. Zolman’s evidence must be assessed not only on its own but in the context of the evidence as a whole. She concluded that looking at the evidence as a whole requires deciding whether the strength of the Crown’s case is such that it leads to a rejection of Mr. Zolman’s evidence. The trial judge cited R. v. J.J.R.D. as authority for applying the reasonable doubt standard on the third branch or R. v. W. (D.).

[59] The trial judge reviewed the credibility of the Crown’s witnesses and made the following findings:

On Tina Lubman

• Tina’s evidence confirmed the unfolding of the narrative and gave context to her relationship with the daughter, the mother and Ms. Lubman;

On the Daughter

• When the daughter described her submitting to Mr. Zolman’s requests regarding masturbation, even though she was reluctant, her account of her reaction appeared to be entirely in keeping with her age and with her trust in him as a doctor.
• rather than blaming Mr. Zolman for what she said happened, the daughter appeared to blame herself, worrying about whether she was overreacting to the incident;
• under cross-examination, the daughter was straight forward in asserting that her mother found Tina was good at putting the case together for an accident settlement, and in admitting that they expected money from it;
• There were some inconsistencies between the daughter’s evidence and that of other witnesses:
  • The daughter’s evidence that Mr. Zolman wore black shiny shoes where Tina said Mr. Zolman always wore brown leather sandals as part of his attire at the clinic and the daughter did not insist that he wore black shoes;
  • The daughter’s evidence that the flowers on her thong were black, while her mother said they were beige;
  • The daughter’s evidence that she heard Mr. Zolman say, “what?” in the examination room, whereas the mother said she was the one who asked Mr. Zolman, “what are you doing?” when he was pressing against her and breathing like a dog into her ear.

On the Mother

• There are inconsistencies in the mother’s evidence on her feelings toward Mr. Zolman regarding his suggestions in 2011 about masturbation as expressed to the police, to Tina, Mr. Zolman, and the court. But this is because the mother had conflicting feelings about him, and the mother ultimately thought he was a good doctor who had helped her and her daughter.
• On the inconsistency of the mother being a “helicopter mom” and her leaving her daughter alone with Mr. Zolman, it was not unreasonable for her to have conflicting emotions about this because she was sensitive to criticism from Mr. Zolman and the receptionist about her being overprotective. It was therefore not incredible that she accepted his suggestion to leave the room.
• On the credibility issue regarding whether the mother would submit herself to a further massage by Mr. Zolman after he had purportedly pressed against her and breathed in her ear like a dog, it is not incredible since Mr. Zolman was in a position of trust and both the daughter and the mother thought he was a good doctor.
• On inconsistencies in the mother’s evidence as to whether it was possible that Mr. Zolman recommended masturbation to her in 2011 or 2012 given the dates provided by the mother; or on the issue of whose hand was on top of whose during Mr. Zolman’s alleged masturbation of her in 2017 - these things are of no consequence; it is understandable that a witness might be mistaken about dates and about details like whose hand was on top of whose.
• There are some minor inconsistencies, lack of conciseness and unresponsiveness in answers to some questions which will be weighed in the context of reasonable doubt.

Application of Reasonable Doubt in the Context of All the Evidence

[60] Applying the third branch of R. v. W. (D.), the trial judge looked at Mr. Zolman’s evidence in the face of the Crown’s case, the trial judge found this to be a case where the strength of the Crown’s case required a rejection of Mr. Zolman’s evidence. The trial judge reviewed the evidence of the Crown that she relied on for proof beyond a reasonable doubt of Mr. Zolman’s guilt. The trial judge concluded:

• The daughter was a credible witness whose evidence remained unshaken despite very vigorous cross-examination on difficult subjects including self-harm, menstrual pain and her efforts at sex education.
• The daughter’s evidence was corroborated in part by her mother’s observation that her daughter was clad only in her thong for her treatment. It was also corroborated by Tina’s evidence on the chronology of her disclosure.
• I believed the daughter’s evidence about what Mr. Zolman said and did to her.
• While the mother’s evidence in places was not straightforward, for example, the mother’s account of taking her daughter to a doctor who, in 2011 had previously discussed masturbation with her, and her description of agreeing to lie down for an examination after the way she said Mr. Zolman behaved toward her on August 25, 2017, I found the mother seemed unsophisticated and naïve in the extreme.
• The mother’s account was not nonsensical or absurd as the defence contended but rather when viewed in the context of her belief that Mr. Zolman was a good doctor who had helped her in the past, her evidence was understandable because she trusted him.
• The daughter corroborated portions of the mother’s evidence in that, for example, while the daughter did not recall much, her evidence as to the chronology of her mother remaining alone with Mr. Zolman after he said her mother was not massaging the daughter properly, was consistent with the account of the mother.
• Consideration was given to the fact that the mother’s evidence was unresponsive, scattered and long in areas, and to whether this was evasiveness and deception and I conclude that these characteristics were not intentional or malicious; they merely reflected her personality as she testified as a witness.
• The mother’s evidence is believable regarding what Mr. Zolman said to her in 2011, and what he did to her by showing her how to masturbate on August 25, 2017.
• The daughter, the mother and Tina’s evidence presented a clear chronology of events on August 25, 28 and 29, 2017 that led to the daughter and her mother going to the police.

[61] The trial judge concluded that the strength of the Crown’s case, viewed in the context of all the evidence, compels rejection of Mr. Zolman’s evidence. She determined that the Crown proved Mr. Zolman committed a sexual assault on the daughter beyond a reasonable doubt on count 1 and a sexual assault on the mother beyond a reasonable doubt on count 2 and, accordingly, convicted on both counts.

THE ISSUES ON APPEAL

[62] The issues before the court are:

(a) erroneously finding that this evidentiary record could properly support convictions based on the mode of reasoning in R. v. J.J.R.D, 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.);

(b) applying different standards of scrutiny to the Crown and defence evidence and failing to resolve material flaws in the complainants’ evidence;

(c) whether the daughter and the mother colluded in their evidence;

(d) whether the complainants had a financial motive to fabricate;

(e) failing to declare a post-verdict mistrial based on the statement of claim evidence; and

(f) whether the trial judge engaged in impermissible stereotypical reasoning about how a sexual assault victim would behave.

PARTIES’ POSITIONS AND APPELLATE ANALYSIS

Application of Third Branch of R. v. W. (D.)

[63] The appellant submits the trial judge misapplied the principles in R. v. J.J.R.D: [R. v. J.J.R.D., 2006 40088 (ON CA)].

[64] In the appellant’s view, the trial judge failed to fully undertake the analysis required by the third branch of R. v. W. (D.), to determine if the Crown had proven the allegations beyond a reasonable doubt. On that view, what the trial judge did was reject the appellant’s evidence and just accept the evidence of the complainants and other Crown witnesses without analyzing the frailties of the Crown’s witnesses’ evidence, the internal inconsistency of the mother’s and the daughter’s evidence and the discrepancies between their evidence on material issues.

[65] The appellant looks to the appellate court’s statutory authority under s. 686(1)(a)(i) of the Criminal Code which empowers the appellate court to reverse the trial court’s verdict where the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence. The appellant takes the position that there are such inadequacies in the trial Reasons that they render the verdict unreasonable within the meaning of s. 686(1)(a)(i).

[66] The appellant seeks acquittals on both convictions. In the alternative, the appellant seeks an order for a new trial.

[67] The appellant argues that the trial judge erroneously resorted to the mode of reasoning in R. v. J.J.R.D. to convict. In the appellant’s view, the complainants did not provide the type of sufficiently cogent and compelling evidence required to sustain a conviction based on R. v. J.J.R.D. reasoning. The appellant pointed to the following passage from the trial Reasons where the trial judge commented that she found no obvious flaws in the appellant’s testimony to cause her to reject it outright and went on to say:

Nonetheless, on its own, and considering the second branch of the W. (D.) test, nor could I say that I completely rejected his account based on his evidence alone.

[68] The appellant submits that there is no air of reality to the trial judge’s conclusion that the complainants’ evidence was so compelling that the only appropriate outcome was to reject the appellant’s testimony beyond a reasonable doubt and convict. The appellant takes the view that the trial judge’s Reasons reflected the J.J.R.D. error of containing errors or gaps in her legal analysis or the processing of the evidence. In the appellant’s submission, the trial judge failed to adequately explain how a reasonable person could have arrived at a verdict of not guilty: [R. v. J.J.R.D., at para. 28]

[69] Relying on the Ontario Court of Appeal in R. v. C.L. the appellant submits that the credibility of inculpatory evidence must be “particularly impressive” before J.J.R.D-reasoning can attain a conviction: [R. v. C.L., 2020 ONCA 258 (Ont. C.A.)].

[70] The appellant also contends that in her analysis of the evidence the trial judge applied a different standard of scrutiny to Crown and defence evidence by minimizing the problems with Crown evidence while highlighting similar or less serious problems with defence evidence: [R. v. Rancourt, 2020 ONCA 64 (Ont. C.A.)]. The appellant argues the convictions are not founded on sound factual findings and thus it would be risky to sustain them. It is appropriate therefore for the appellate court to reconsider to some extent the impact of the evidence on the verdicts.

[71] The appellant points to the following areas of evidence where he contends the trial judge unevenly scrutinized the evidence of the complainants and the appellant:

• The trial judge described the mother as a scattered witness who gave long, often unresponsive answers which she saw as a badge of credibility but accepted her evidence saying, “these characteristics were not intentional or malicious – they merely reflected her personality as she testified as a witness” where there was no expert or other evidence on the mother’s personality. By contrast, the trial judge held Mr. Zolman to a different standard finding his evidence difficult to assess because of a lack of detail about his relationship with the mother;
• The trial judge saw as “unsophisticated and naïve in the extreme” some of the mother’s evidence including leaving her daughter with someone she claimed had previously been sexually inappropriate with her. The appellant submits the mother’s evidence was “so seriously flawed” that this could not be an adequate explanation for the serious problems in her testimony, many of which directly contradicted the proposition of her purported “trust” in Mr. Zolman; for instance, telling the daughter he was a “womanizer”.
• The trial judge stated the importance of the standard of viewing Mr. Zolman’s evidence “through the lens of the presumption of innocence” and found that viewed in that context, Mr. Zolman’s denial and distance from the topic of PCOS were normal. The appellant submits the trial judge failed to apply the standard.
• The evidence was that Mr. Zolman denied discussing menstrual issues or treating the daughter for PCOS. The trial judge noted a discrepancy between the mother’s and the daughter’s evidence about PCOS but dismissed it as inconsequential while treating Mr. Zolman’s denial as a “lack of context and detail”.
• The trial judge’s findings on the complainants’ credibility were infected with her view of the daughter’s and the mother’s credibility based as it was on the premise that masturbation was “of all things”, an unlikely subject matter for fabrication, and hence was truthful, which view she maintained after the civil claim was filed.
• The trial judge found “odd” the daughter’s evidence about the needles Mr. Zolman used for acupuncture because she asked him no questions when Mr. Zolman knew she was afraid of needles. The appellant submits this was not odd since the daughter requested needles and did not express concerns to the appellant and as well the daughter overcame her fear when she was 15 years of age.
• The trial judge found the mother discussed the daughter’s allegations with her before the trial and after the daughter’s trial testimony and found the mother had lied about this in her testimony. The trial judge also found the mother had raised the sexual assault incident with the daughter from time to time. And the trial judge acknowledged the caution required by a trier of fact but concluded that collusion lacked an “air of reality”. Beyond this, the trial judge found the mother’s evidence corroborative of the daughter’s in circumstances where the mother had heard her daughter’s account of the incident in the disclosure to Ms. Lubman.
• The trial judge relied on the daughter’s demeanour which the appellant submits is “a notoriously dangerous tool for fact-finding” and dismissed inconsistencies in the daughter’s evidence as unimportant, focusing on how she “appeared reasonable” in giving her testimony.
• The trial judge reasoned that the daughter’s alleged acquiescence to masturbating, “appeared to be entirely in keeping with her age” which the appellant submits was a further improper behavioural assumption affecting the trial judge’s positive credibility assessment.
• The trial judge dismissed as “understandable” the daughter’s claimed lack of recollection of the detailed interaction the mother described after the appellant came back into the office, concluding that, “it would not be unusual to have difficulty recollecting in such circumstances”. The trial judge did not question the daughter’s recall of the details of what allegedly happened to her moments earlier in her mother’s absence.
• The trial judge did not regard as major flaws in the daughter’s testimony that she at one time said she accepted Mr. Zolman’s recommendation that masturbation was necessary and then under cross-examination adopted her police statement that she knew masturbating was not necessary, and that she faked that she was masturbating when Mr. Zolman asked her to do this. The appellant submits that this demonstrates the daughter lied under oath in this significant area of her story and the judge failed to explain why this did not give her a reasonable doubt.

[72] The appellant has identified areas of the Crown’s witnesses’ evidence that raise credibility issues the appellant contends were not factored into the application of the reasonable doubt standard. Citing R. v. Burke and R. v. W. (R.), the appellant argues this is one of those exceptional cases where it is appropriate for the appellate court to re-weigh, to some extent, the judge’s credibility findings.

[73] The respondent submits that the appellant has misapplied R. v. J.J.R.D. and R. v. C.L. The focus of R. v. J.J.R.D. is the obligation of the trial judge to give adequate reasons for rejecting the accused’s denial of guilt. It is a case about the adequacy of reasons. This appeal is not directed to the adequacy of the trial Reasons. The appeal is rather based on a substantive critique of the trial judge’s application of the third branch of R. v. W. (D.) to the credibility of the Crown and defence witnesses and is built on the view that the verdict is unreasonable as required by s. 686(1)(a)(i).

[74] I agree with the respondent’s view. The Ontario Court of Appeal in R. v. V.Y. distinguished between cases dealing with the adequacy of reasons and those that focus on the success or failure of the trial judge to communicate their reasoning process: [R. v. V. Y., 2010 ONCA 544, at para. 39, (Ont. C.A.)]. The appellant’s critique is of the manner in which the trial judge navigated through the credibility evidence and the consequent failure to arrive at a reasonable verdict.

[75] I also agree with the respondent that R. v. C.L. is a jury trial where the appellate court was concerned with the improper importation of R. v. J.J.R.D. language into a jury charge and the risk of confusing the jury by using the wording “reasonable acceptance.” As such, neither R. v. J.J.R.D. nor R. v. C.L. is useful to the appellant in analyzing whether the trial judge misapplied the standard of proof.

[76] The respondent submits that the trial judge did not misapply the burden of proof and reverse the burden onto Mr. Zolman. The respondent submits that the trial judge:

• applied the standard of proof to the whole of the evidence and did not improperly apply the burden of proof;
• fully considered the weaknesses in the Crown evidence;
• found on the essential elements of the offence that the Crown evidence was mutually corroborative and in places supported by the defence evidence from Ms. Lubman;
• found that the appellant’s flat denials of committing the offences were outweighed to such a degree that there was no reasonable doubt; and
• found the judge’s findings of facts on credibility are owed deference and should not be disturbed on appeal.

[77] The respondent submits that the trial judge was entitled to accept the evidence of the Crown witnesses on the essential elements of the offence and reject the appellant’s denials in the context of the whole of the evidence which includes Crown witnesses’ evidence.

[78] The respondent stresses the case law, cited earlier in this decision, that held that uneven scrutiny is a difficult argument to make. That inquiry leads the appellate court down the road of encroaching on the trial court’s unique task of making credibility findings: [R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 26, (Ont. C.A.)](https://www.canlii.org/en/on/onca/doc/2016/2016onca576/2016onca576.html); [R. v. Howe, at paras. 58-59](https://www.canlii.org/en/on/onca/doc/2005/2005canlii253/2005canlii253.html) and; [R. v. Aird, at para. 39]. The respondent points to the high degree of deference accorded those findings by the trial judge and submits that what the appellant asks this court to do is to re-examine the trial judge’s decision under the guise of questioning her application of the third branch of R. v. W. (D.).

[79] The respondent submits that the appellant did not assert an unreasonable verdict or misapprehension of the evidence. I agree the appellant does not claim misapprehension of the evidence. However, it appears that the appellant in citing R. v. Burke and R. v. W. (R.), does ask this court to conduct a limited reweighing of the evidence based on the view that the conviction was founded on “shaky ground.” In this regard, the appellant adopted the following passage from R. v. W. (R.):

[i]t is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence.

[R. v. W. (R.), at p. 131]

[80] It is the appellant’s view that it can be concluded that the complainants’ evidence was so problematic that a finding of guilt, in the face of the appellant’s testimony, was unreasonable.

[81] The respondent answers the appellant’s critique that the trial judge’s credibility findings are marked by uneven scrutiny of the appellant’s and complainants’ evidence. The respondent submits the appellant is merely attempting to relitigate the following credibility issues:

• On the trial judge’s dismissal as inconsequential the discrepancy between the daughter’s and the mother’s evidence about when Mr. Zolman was told of the daughter’s PCOS while finding Mr. Zolman’s evidence lacked context and detail, the respondent submits, this is not the application of a difference of standard but rather the trial judge, as she is entitled to do, dealing with different kinds of evidence from different witnesses as those differences were presented at trial.
• The appellant singles out the first sentence of nine paragraphs of the trial judge’s analysis of the mother’s evidence for a credibility problem without considering the nine paragraphs as a whole. The respondent points out that in those nine paragraphs the trial judge explained the reasons for her lack of concern with how the mother gave her evidence. That is, the trial judge observed that the mother had conflicting feelings about that fact the appellant was in a position of trust and was regarded by both complainants to be a good doctor.
• The respondent submits the nine paragraphs are explicitly linked in the judgment to part of the reasonable doubt analysis: in the fourth paragraph of the reasonable doubt analysis is where the trial judge addresses the mother’s evidence; her conclusion in a later paragraph that the difficult parts of the mother’s evidence, long, scattered and sometimes unresponsive answers, “merely reflected her personality as she testified as a witness” - this is a conclusion open to the trial judge who observed the mother and is not a different standard being applied to the mother in comparison to the appellant.
• The appellant seeks to relitigate the trial judge’s findings that differ with defence arguments about inconsistencies in the mother’s evidence; the appellant suggests a need for an expert opinion on personality for the trial judge’s finding that the mother is just “a scattered speaker” as opposed to being a deliberately evasive witness. The respondent submits there is no need for an expert as this is exactly the kind of assessment that is at the core of a trial judge’s job.
• The appellant attempts to relitigate what the appellant regards as inconsistencies in the daughter’s evidence on collusion where the trial judge has found no inconsistencies when the evidence as a whole is considered.
• The appellant seeks to have this court revisit the trial judge’s view that the complex story about masturbation leading to assault is an unlikely story for fabrication.
• The appellant attempts to relitigate the factual finding of the trial judge that there was no active collusion. The respondent submits that issue was extensively and cautiously addressed by the trial judge finding the daughter’s evidence was corroborated by defence witness Ms. Lubman’s evidence that the daughter was reluctant to tell her mother about the assault.
• The appellant argues uneven scrutiny without establishing this in substance. The respondent points out that the mother and the appellant are different people and were different witnesses, presenting in different ways, and that the trial judge appropriately considered their evidence in a manner that addressed the different characteristics of their evidence. This, the respondent submits, is not the same as applying a different standard.
• A finding by a trial judge that a witness is more credible than another is the function of a trial judge and not an indication of uneven scrutiny.

[82] The appellant appeals the verdicts under s. 686(1)(a)(i) of the Criminal Code on the basis that the conviction is unreasonable, that the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence.

[83] I do not find this is one of those rare cases where the appellate court should tread into the trial judge’s findings of fact to do a limited re-weighing of the trial judge’s findings. I find the appellant has asked this court to relitigate many areas of the trial judge’s findings of fact on credibility.

[84] The trial judge provided evidentiary support for her factual conclusions. Her findings on the credibility of the daughter and the mother were based on her observations of them as witnesses from the perspectives of their physical demeanour and nature of their oral presentation. She found some inconsistencies within their evidence and between their evidence and found them inconsequential on the whole of the evidence, including Mr. Zolman’s and Tina’s evidence. The trial judge found overall that the daughter and her mother were credible witnesses. As is the proper preoccupation of a trial judge in a judge-alone trial, it was open to the trial judge to make those types of findings in concluding she accepted their allegations as true.

[85] As I find below, on other factual matters, it was available to the trial judge to find the defence had not proven collusion between the daughter and the mother and further did not find a financial motive to lie.

[86] Uneven treatment of Crown and defence witnesses is a hard position to succeed on. I do not find the defence succeeded in this argument. I agree with the respondent’s position that the trial judge did not scrutinize the complainants’ and appellant’s evidence unevenly. But rather, she acknowledged the differences in the personal natures of the Crown and defence witnesses as people, the differences between the styles of their presentations and the different characteristics of their evidence. This was an appropriate approach for reviewing the witnesses’ evidence. I do not find by doing this that the trial judge scrutinized the parties’ evidence unevenly.

[87] As a factual matter, I do not find the verdicts were unreasonable as required by s. 686(1)(a)(i).

Collusion

[88] The trial judge found no collusion between the daughter and the mother on their evidence of the circumstances of the alleged sexual assault on the daughter.

[89] The trial judge did turn her mind to the possibility of collusion. She acknowledged that the mother would at times speak about the incident with her daughter. But she found this did not amount to collusion. She accepted the daughter’s denial of tailoring her evidence to correspond with her mother’s account.

[90] The defence claims the mother altered her evidence to correspond with her daughter’s on how many times Mr. Zolman left the treatment room while her daughter was receiving acupuncture. The mother first said once to the police and changed it to twice at trial. She denied changing her evidence to accord with her daughter’s and the trial judge accepted that.

[91] The trial judge addressed other concerns raised by defence counsel as evidence of collusion. The trial judge pointed to the change in the daughter’s evidence from her police statement to trial and the mother’s evidence on this regarding the number of needles used by Mr. Zolman and accepted the credibility of the daughter that she had only “presumed” the number of needles and had not colluded with her mother. That was a finding on credibility the trial judge was entitled to make.

[92] The trial judge also spoke to the defence’s claim that the daughter changed her evidence about how she got dressed in the treatment room from she dressed herself to her mother may have assisted her, which was also the mother’s evidence. The daughter testified that getting dressed was a blur. The trial judge disagreed with defence counsel that the only inference that can be drawn from the inconsistency is that she colluded with her mother.

[93] The trial judge found those three areas of evidence to be inconsequential to the main issue of the sexual assaults by Mr. Zolman. That conclusion was available to the trial judge.

[94] The more serious allegation of collusion cited by the defence is that the mother’s September 7th statement contained a detailed account of the incident when Tina had testified that on August 29th, when she met with the mother and daughter, that the daughter had told her mother only a few details about her incident. The defence submitted that the mother must have collaborated with her daughter to provide the police with the details she gave the police.

[95] The trial judge was entitled, on the facts before her, to prefer the daughter’s evidence on this matter over Tina’s. She gave reasons. She pointed to the fact that Tina did not seem certain in giving evidence about this. The trial judge cited Tina’s language, “I think” and, “To the best of my recollection.”

[96] In arriving at her conclusion that there was no collusion, the trial judge considered the broader evidentiary context and arrived at the reasonable observation that the daughter and her mother were exceptionally close and that the daughter lived a sheltered life. They lived together. The two disagreed on religion. And when the daughter spoke to Tina, she resisted telling her mother which in the trial judge’s view, pointed away from collusion. The trial judge concluded:

While Mr. Ashurov submitted that many of the small and insignificant inconsistencies mentioned above amounted to collusion by people who were bad liars, I find they merely suggested human nature on the part of witnesses who recalled small details in different or mistaken ways.

At the end of the day, I have given careful consideration to the issue of collusion and/or collaboration and find there is no air of reality to it.

[Reasons, Part 3.5, page 12]

[97] What the trial judge’s findings indicate is that due to the daughter’s and the mother’s closeness as mother and daughter they had an “opportunity” for collusion. The closeness and the fact they resided together means they would reasonably speak to each other often, perhaps, even at times understandably mentioning their incidents of sexual assault. It would be artificial and unreasonable to expect that the daughter and her mother would not speak with each other about their experiences. In a case where the defence alleged collusion by an aunt and daughter in a sexual abuse case the court made this observation which I believe is applicable in case before me:

In the circumstances of this case, it would defy common sense to suggest that the Crown has satisfied its burden. The evidence was clear from the Daughter, the Wife and the Niece that the extended family is close. Many members of the family appear to speak with each other on a regular basis. The fact that the accused allegedly abused both the Daughter and the Aunt became common knowledge within the family. It would be almost inconceivable that, over the course of 30 to 40 years, no discussion of the incidents would happen either with the complainants directly or, more likely, within their earshot.

[R v. R.B. 2018 ONSC 5482, at para. 31, (Ont. S.C.J.)]

[98] The trial judge turned her mind to the spectre of collusion in examining the daughter’s testimony and she believed the daughter:

I accept [the daughter’s] evidence that [the mother] did bring up the topic of this incident from time to time, even after the trial started. As the trier of fact, it is appropriate to be cautious about this, especially since [the mother] denied that they ever spoke about it. But does bringing up the topic amount to collusion? I do not believe so. [The daughter] said that if her mother brought it up, she tried not to discuss it with her. When asked if she tried to streamline her evidence to conform to her mother’s, [the daughter] said, “why should I?”, later explaining that while her mother did make a comment about being surprised her daughter was almost naked, they did not talk about it.

[Reasons, Part 3.5, page 11]

[99] Evidence of a “mere opportunity” for collusion, however, is not sufficient. Courts have recognized that sexual offences involving numerous complainants are often marked with opportunity. However, courts have also clarified that it is concoction and collaboration, not mere contact that is at issue. There must be an “air of reality” to an allegation of collusion: [R. v. Handy, (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at paras. 111 and 110, (S.C.C.)].

[100] I find on the evidence before the court that the trial judge was entitled to find there was no collusion between the daughter and her mother.

A Motive to Fabricate and Mistrial

[101] The basic principles governing the issue of motive are: (a) the defence has no onus to demonstrate a motive to fabricate; (b) the absence of evidence of a motive to fabricate does not necessarily mean that there was no such motive; and (c) the absence of a motive to fabricate does not establish that the witness is telling the truth: [[R. v. Blackman 2008 SCC 37, [2008] 2 SCR 298, at paras. 39, 42 and 43, (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/2008/2008scc37/2008scc37.html)

[102] The trial judge arrived at a guilty verdict on July 9, 2019. The complainants filed a civil claim against Mr. Zolman and New Wave on August 19, 2019. The civil claim therefore did not exist at the time of trial. The defence took the position that during the trial the prospect of the daughter and her mother receiving financial gain through a potential civil claim provided them with a motive to fabricate their allegations at trial. This, in the defence’s view, goes to the heart of the complainants’ credibility.

[103] The daughter and the mother underwent strenuous cross-examination on this and denied that they were motivated to make false allegations by possible financial gain.

[104] The defence sought to reopen the case and requested a mistrial be declared. The defence argued that the civil claim was fresh evidence that changed the complexion of the trial, that bolstered the defence’s argument at trial that the complainants had a financial motive to fabricate.

[105] Some tests must be satisfied to have fresh evidence admitted. Three tests are enunciated by the Supreme Court of Canada in R. v. Palmer:

(a) Is the evidence admissible under the operative rules of evidence?

(b) Is the evidence sufficiently cogent that it could reasonably be expected to have affected the result?

(c) What is the explanation offered for the failure to adduce the evidence at trial and should the explanation affect the admissibility of the evidence on appeal?

[[R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759]](https://www.canlii.org/en/ca/scc/doc/1979/1979canlii8/1979canlii8.html)

[106] The appellant takes the position that the complainants executed a strategy by denying at trial that they had brought a civil claim in order to say they did not have a financial motive to lie. Then according to the appellant, they “lay in wait” and filed the civil suit after the verdict to avoid being confronted at trial with proof of a financial motive.

[107] As context for his position, the appellant points to the fact that the mother had received a monetary settlement from her 2010 car accident and that the complainants testified that the settlement money helped them. The daughter also indicated her need for funds so she could return to school.

[108] The cogency test is the factor relevant to the appellant’s argument on this appeal. The appellant argues the civil claim is cogent evidence of a motive to fabricate. In the appellant’s view, the civil claim establishes that the daughter and her mother were not truthful when they denied a financial motive. The appellant submits that evidence of an ulterior motive to fabricate by a complainant “provides a compelling alternative to the truth of the allegations”: [R. v. Bartholomew, 2019 ONCA 377, at para. 21, (Ont. C.A.)].

[109] The trial judge considered motive to fabricate in the context of the evidence the daughter gave when asked about her mother’s insurance settlement. The trial judge cited the daughter’s candidness in testifying about the importance, to her and her mother, of the insurance settlement from her mother’s accident. She cited the further fact that the daughter openly stated that her mother took her to New Wave for injuries from the daughter’s car accident because the mother liked how Tina made a good case for settlement. This openness by the daughter about insurance settlements the trial judge found to be incompatible with an ulterior motive to fabricate.

[110] I find it was open to the trial judge to find on all the evidence that the civil suit was not evidence of a motive to fabricate in this case. I accept the respondent’s position that the filing of a civil suit is not evidence that provides proof of a motive to fabricate. The trial judge, as did the respondent, relied on the Ontario Court of Appeal decision in R. v. Flis which held:

In any event, I find it entirely unremarkable that Ryan would launch a civil suit following the outcome of the criminal trial. It only makes sense that he would. To infer from his commencement of a lawsuit years later and after a criminal court had convicted his assailants, that this seventeen-year-old boy had dollars and cents in mind when he accused the respondents of abuse on the night of his arrest borders on the absurd.

[[R. v. Flis, 2006 3263 (ON CA), [2006] O.J. No. 442, at para. 103, (Ont. C.A.)]](https://www.canlii.org/en/on/onca/doc/2006/2006canlii3263/2006canlii3263.html)

[111] The Ontario Superior Court has also considered motive to fabricate in relation to the filing of civil suits by sexual assault victims. R. v. L.G. observed that if the complainant had commenced a lawsuit she would be entitled to do so. R. v. Shenava found a lawsuit against the accused did not necessarily detract from the complainant’s credibility. “A person who is sexually assaulted may well feel aggrieved and seek recourse in civil courts”: [R. v. L.G. 2019 ONSC 3078 para. 257, (Ont. S.C.J.)](https://www.minicounsel.ca/scj/2019/3078) and [R v. Shenava, 2017 ONSC 7667, Ont. S.C.J.)].

[112] The appellant argues, with respect to motive to fabricate, that the trial judge made an error that R. v. Blackman cautioned about of concluding the complainants were telling the truth in the absence of a motive to fabricate. This, the appellant submits, infected her treatment of the evidence on the third branch of R. v. W. (D.).

[113] The trial judge acknowledged the three governing R. v. Blackman principles in the part of her Reasons on a motive to fabricate. The question is whether she paid heed to the principle at issue in assessing the complainants’ credibility.

[114] There was a combination of factors behind the trial judge rejecting a financial motive to lie. And she expressly observed that the absence of such a motive does not establish truthfulness. Taken in context then the trial judge did not enhance the complainants’ credibility by rejecting the financial motive. As the respondent argued, she just declined to diminish credibility based on the defence arguments of a motive to fabricate.

[115] I do not find the fact of a civil suit in the factual context of this case impacts the credibility of the complainants.

[116] I accept the respondent’s view that the civil suit being commenced after the verdict is of little consequence in this and other cases of sexual assault. It is not uncommon for victims of alleged sexual assault for strategic, and other reasons unrelated to a financial motive related to a criminal proceeding, to choose to file lawsuits after the completion of criminal proceedings.

[117] There is nothing disentitling victims from dealing with their grievances in that manner. It cannot be presumed from the filing of a civil claim alone that there is an underlying financial incentive to make false allegations in a criminal trial. This thinking could operate to discourage victims of sexual assault from exercising their right to seek redress for wrongdoing committed against them.

Impermissible Stereotypical Reasoning

[118] I find the substance of the trial judge’s comments on the likelihood of a civil suit to be marked by prohibited reasoning that does impact credibility.

[119] The appellant submitted that the trial judge erred by falling into myths and stereotypical reasoning in speaking about the likelihood of a claim related to the impropriety of masturbation. The appellant points to the following passage from the trial Reasons:

I see no merit to this purported motive and point out that it would have to be a very contrived and contorted story about masturbation to extend back so many years. Similarly, it seems an unlikely basis for a civil claim, founded on alleged improprieties related to masturbation, of all things.

[Reasons, Part 3.6, at page 90]

[120] The appellant submits that the trial judge erred in law in finding that a civil suit based on the impropriety of masturbation was unlikely, suggesting that a claim relating to more serious allegations would be more likely. The appellant cites case law for the proposition that the absence of an unembellished or lesser claim when a stronger claim could be available is not evidence of credibility: [R. v. Kiss, 2018 ONCA 184, at para. 52, (Ont. C.A.)](https://www.minicounsel.ca/onca/2018/184) and [R. v. L.L., 2014 ONCA 892, at para. 26, (Ont. C.A.)]. Courts have found this to be prohibited reasoning.

[121] On the mistrial application, the trial judge addressed that submission. She explained that she did not mean in her trial Reasons that a civil claim in itself was unlikely. But that what she meant was that if the complainants were truly seeking financial gain masturbation would be an unlikely choice of subject matter for fabrication. But this is the very reasoning challenged by the appellant.

[122] What the trial judge did in the appellant’s view was err in law by relying on myths and preconceived notions about how a truthful sex assault claimant would behave. The trial judge improperly made assumptions about what a sex assault complainant would claim or not claim in making an allegation for financial gain. It is the appellant’s view that there is no evidence to support a finding that fabrication based on masturbation is unlikely. The appellant cited the Ontario Court of Appeal:

It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at 2019 ONCA 541 para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. These are the “myths” of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”: R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.

[R. v. Cepic, 2019 ONCA 541, at para. 14, (Ont. C.A.)]

[123] I find the trial judge did rely on preconceived notions about how a sexual assault victim would behave; whether a victim of masturbation would likely launch a civil claim. That type of reasoning, I think, is in the same family of thinking that arises when credibility is questioned due to a victim’s delay in disclosing sexual assault or reporting it to the police: [[R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/2000/2000scc43/2000scc43.html). It is conduct connected to whether, in what circumstances or how a victim would make a claim or report abuse.

[124] It is appropriate for a trier of fact to rely on common sense and logic in making decisions, however, there are limits to this:

The case law confirms that the trier of fact can be told to rely on “reason and common sense”, “logic” and “life experiences” in drawing inferences. However, in using any such approach the trier of fact must necessarily be assuming some standard against which the evidence on the record is measured. If that standard includes inaccurate stereotypical assumptions, the analysis runs the risk of looping back on itself and falling into error. Thus, it is necessary to instruct the trier of fact that it can rely on logic, common sense and life experiences so long as the reasoning is not based on certain types of “prohibited reasoning” that underlie the forbidden stereotypes.

[[R. v A.R.D., 2017 ABCA 237, at para. 99, (Alta. C.A.); aff’d R. v. A.R.J.D, 2018 SCC 6, [2018] 1 S.C.R. 218]](https://www.canlii.org/en/ab/abca/doc/2017/2017abca237/2017abca237.html)

[125] There is no evidence on the record of how a victim of masturbation will act in relation to the prospect of bringing or not bringing a civil claim. The trial judge appears to rely on logic and common sense based not on the record but derived from an unfounded assumption or presumption. Assumptions about the behaviour of sexual assault victims that are unsupportable can result in drawing false or unavailable inferences from the evidence.

The analytical error identified by the Crown arises when the trier of fact a) identifies or assumes “average” or “normal” conduct by a sexual assault victim in a particular situation, and b) makes a finding, draws an inference, or relies on a presumption arising from the assumption of normative behaviour. This is what amounts to “stereotyping”

[R. v A.R.D., at para. 95]

[126] The question is whether the trial judge’s preconceived notion about the likelihood of a civil claim on the impropriety of masturbation has a material bearing on the convictions. If so, the question is whether the Crown has met its burden on appeal of establishing an error of law warranting a new trial.

[127] I find the trial judge in adopting impermissible reasoning erred by reversing the burden of proof onto Mr. Zolman. In acting from the presumption that the complainants would not likely bring a civil claim on the impropriety of masturbation, the trial judge implies the likely truthfulness of their allegations. There is an implication that a complainant who makes a civil claim alleging a less serious or less embellished form of sexual assault, when a more serious one is available, would be more credible. The Ontario Court of Appeal in R. v. L.L. found troubling the trial judge’s reference to the complainant’s lack of embellishment and questioned how an absence of embellishment would help enhance a complainant’s credibility: [R. v. L.L., 2014 ONCA 892, at para. 2, (Ont. C.A.)].

[128] In his critique of the trial judge’s impermissible reasoning, I find the appellant invited another form of impermissible reasoning in questioning the timing of the civil suit in relation to a financial motive. As noted earlier, the appellant called into issue the complainants’ credibility because they awaited the verdict to commence the lawsuit. This too is making a presumption of how a credible sexual assault victim would behave. This would not have been a permissible basis for the trial judge to have founded her credibility findings.

[129] In summary, what it appears the trial judge did was proceed from the perspective that the complainants were credible for making a civil claim alleging masturbation rather than a more serious claim and ultimately concluded the allegations were proved beyond a reasonable doubt. The effect of what the trial judge did is to reverse the presumption of innocence and guided by prohibited reasoning fell into the error of presuming Mr. Zolman’s guilt. I find, in doing so, the trial judge lost sight of the burden of proof and the presumption of innocence. This is the type of error that would influence the trial judge in deciding to convict.

Mistrial

[130] I have found that the trial judge was entitled on the evidence to the conclusion she arrived at that the prospect of bringing a civil suit, in this case, did not amount to a financial motive to fabricate.

[131] Given that finding, I also accept that the trial judge had the basis to conclude the civil claim did not satisfy the second branch of R. v. Palmer, that the civil claim did not provide cogent proof of a motive for the complainants to fabricate. As noted earlier, the motive of financial gain was probed on the cross-examination of both complainants and they denied such a motive. The trial judge presented reasons for her conclusion based on the evidence before her. That was a credibility finding the trial judge was entitled to make. I accept the trial judge’s finding that the civil suit did not meet the cogency test of being capable of altering the outcome of the trial.

[132] That being the case, the trial judge declined to reopen the case and declare a mistrial. It is commonly known that a mistrial is an extraordinary remedy, a disposition not to be made lightly. Declaration of a mistrial “should only be granted as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned” to prevent a miscarriage of justice: [R. v Burke, 2002 SCC 55 (S.C.C.)](https://www.canlii.org/en/ca/scc/doc/2002/2002scc55/2002scc55.html) and [R. v. Chiasson, 2009 ONCA 789 (Ont. C.A.)].

[133] I accept that the trial judge did not err in her conclusion that a mistrial is not appropriate. In the circumstances of this case, it would not amount to a miscarriage of injustice to disallow the fresh evidence of the civil suit. This naturally follows from the trial judge’s discount of a motive to fabricate and her finding that the civil claim would not be a fruitful means to challenge the complainants’ credibility.

[134] A mistrial, in this case, is not a remedy of last resort. This appeal itself is an alternative route of disposition. I find the trial judge made no error in law in the circumstances of this case. There was no basis to declare a mistrial.

CONCLUSION

[135] I do not find under s. 868(1)(a)(i) of the Criminal Code that the trial judge’s credibility findings led to an unreasonable unsupportable verdict. Her credibility findings on the complainants’ allegations and the appellant’s denial of guilt which she weighed on the totality of the evidence were supportable on the record before her. It is a rare occasion for an appellate court to intervene on a trial court’s credibility findings. I find this is not one of those cases.

[136] I find that while the appellant took a detailed journey through the trial judge’s credibility findings, he did not point to anything in the Reasons that made it clear that the trial judge applied different standards in scrutinizing the evidence of the appellant and the complainants. It is not enough to show that a different trial judge could have reached a different credibility assessment: [R. v. Orton, at para. 26]

[137] The appellant also raised errors of law, the failure to declare a mistrial and reliance on impermissible stereotypical reasoning. I decided this is not one of those exceptional cases where a mistrial is appropriate. On impermissible reasoning, I found an error of law based on a wrong legal principle, a prohibited assumption about how a sexual assault victim will behave. I find pursuant to s. 868(1)(a)(ii) of the Criminal Code that the judgment of the trial judge should be set aside on the ground of a wrong decision on a question of law and a new trial ordered.

DISPOSITION

[138] I would grant the appeal, set aside the convictions and order a new trial.

B.A. Allen J.

Released: October 29, 2020

CITATION: R. v. Zolman, 2020 ONSC 6611

COURT FILE NO.: CR-20-40000002-00AP

DATE: 20201029

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GENNADI ZOLMAN

Appellant

REASONS FOR JUDGMENT

(On a Summary Conviction Appeal)

Allen J.

Released: October 29, 2020