COURT FILE NO.: SCA (P) 1807/19
DATE: 2021 03 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JEHROOMIEN RAJENDRAM
Appellant
Counsel: Reza Raeesi, for the Respondent Ravin Pillay, for the Appellant
HEARD: January 25, 2021, by video conference
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice J. Freeman dated May 6, 2019 at Brampton]
F. Dawson J.
[1] The appellant was convicted of sexual assault following a trial before Justice J. Freeman of the Ontario Court of Justice. He appeals on two grounds. First, he submits that the trial judge erred in stating that stage two of the W.(D.) test did not apply in this case because the appellant did not testify or call any evidence: R. v. W.(D.), [1991] 1 S.C.R. 747, at pp. 757-58; 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, at para. 28. Second, he submits that the trial judge erred by applying uneven scrutiny to the evidence of the complainant, BG, and to the evidence of another Crown witness, Christine Forrester. The appellant submits that Ms. Forrester’s evidence was inconsistent with the evidence of BG on matters of such central importance to the assessment of BG’s credibility, that the resulting unfairness undermines the appellant’s conviction.
[2] For the reasons that follow, I am unable to accept these submissions. While the trial judge erred in her description of the applicability of W.(D.) near the beginning of her reasons for judgment, other statements made in the course of her reasons and a review of her reasons as a whole reveal that she did not ignore stage two of the W.(D.) analysis in reaching her decision. I am further of the view that the appellant has failed to demonstrate that the trial judge applied a different standard to the assessment of the evidence of BG and Ms. Forrester or that the trial judge’s findings of fact were unreasonable.
The Evidence and Factual Background
[3] BG was 16 years old at the time of the alleged offence. She testified that on May 27, 2016 she and her friend Keelin met with a friend of Keelin’s named Kevin. They accompanied Kevin to a bar and then to a party at a condominium. BG, Keelin, Kevin, and a woman named Christine Forrester eventually left the condo and went to the appellant’s home and continued to party. BG and Keelin originally lied about their ages. The others in attendance at the appellant’s home were all significantly older. However, by the time the alleged offence occurred the others were aware of BG and Keelin’s true ages.
[4] During the partying everyone was consuming alcohol and illegal drugs. Significant quantities of cocaine were available at the appellant’s home. Keelin ended up having a seizure, which prompted aborted phone calls to 911. Although Keelin was advised not to use more drugs it seems that she did. She had a second seizure. A further call was placed to 911. However, incomplete information was provided during the 911 call and the police had to undertake some investigation to determine the location of the call, delaying the eventual emergency response.
[5] BG testified that after Keelin’s second seizure she (BG) entered the bathroom to use the toilet. She testified that as she was standing up from the toilet the appellant entered the bathroom and locked the door behind him. BG testified that he pushed her down to her knees, grabbed her head and tried to force her to perform fellatio. He succeeded in inserting his penis into her mouth for a brief period. BG resisted and testified the appellant relented when she threatened to bite his penis if he continued.
[6] After the alleged sexual assault police and an ambulance arrived at the appellant’s home. That was more than an hour after the last 911 call. When the police arrived, Kevin began to flush cocaine down the toilet. The appellant resisted the police presence in his home. He was arrested and placed in a police vehicle. A police officer searching the basement of the home came upon Kevin and Christine Forrester. The officer then located BG and Keelin hiding in a closet under a staircase. They were crouched down and not making any noise. Kevin was then arrested for unlawful confinement.
[7] The evidence at trial consisted of the testimony of BG, which included a lengthy video interview admitted into evidence pursuant to s. 715.1 of the Criminal Code, the testimony of Christine Forrester and the evidence of three police officers. The appellant did not testify or call any evidence. The trial lasted for four days and considerably more detail about the events leading up to the assault were provided by both BG and Ms. Forrester.
[8] A number of differences between the evidence of BG and that of Ms. Forrester emerged at the trial. Trial counsel for the appellant (not Mr. Pillay) emphasized those differences and various alleged internal inconsistencies in BG’s evidence, as well as alcohol and drug consumption, to mount a general attack on BG’s credibility. Trial counsel also submitted that BG had a motive to make up a false allegation of sexual assault due to her alcohol and drug consumption and her partying with older individuals. It was suggested that she was concerned about how her father would react to those circumstances.
[9] I will deal with the evidence in more detail when I consider the grounds of appeal raised by the appellant.
The W.(D.) Error
[10] The trial judge provided written reasons for judgment. Para. 3 of her reasons, in its entirety, reads as follows: “As the defence called no evidence, steps 1 and 2 of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) do not apply.”
[11] With respect, standing on its own, this is clearly an error. While it is true that in W.(D.) the well-known three stage formulation of the application of the requirement for proof beyond a reasonable doubt refers only to the evidence of the accused, subsequent cases have clarified that the instruction is applicable where there is evidence favourable to the accused found anywhere in the case. That is so whether the accused has testified or called any evidence.
[12] The test as originally formulated by Cory J. in W.(D.) is found at para. 28 (pp. 757-58 SCR), of that case:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[13] More recent cases have expanded the applicability of the three-stage test. For example, in R. v. Marki, 2021 ONCA 83, at para. 23, MacPherson J.A. held:
The W.(D.) instruction arose in a case where the accused testified: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. This was manifest in the actual language of the famous tripartite formulation of the instruction which refers explicitly to the “testimony of the accused”. However, subsequent case law has made it clear that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and their evidence conflicts with that of the Crown witnesses. Thus, as expressed by Blair J.A. in R. v. B.D., 2011 ONCA 51, at para 114:
Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. [Emphasis added.]
Pronouncements to the same effect can also be found in R. v. Smits, 2012 ONCA 524, at para. 37; R. v. Brown, 2018 ONCA 481, at paras. 67-69; R. v. Kirlew, 2017 ONCA 171, at para. 17 and R. v. Smith, 2020 ONCA 782, at para. 12.
[14] I turn now to consider whether the error reflected in para. 3 of the trial judge’s reasons was carried through into her analysis of the conflicting evidence relevant to the assessment of BG’s credibility, thereby undermining the verdict in this case. This requires some further reference to the evidence. As the stage two W.(D.) error alleged focusses on the differences between the evidence of BG and Ms. Forrester, I will place the emphasis of my further review there.
[15] The only witness to testify who was present for the alleged sexual assault was BG. As mentioned, she claimed the appellant sexually assaulted her in the bathroom. Christine Forrester did not see the alleged assault. However, she testified that she never saw the appellant enter the bathroom with BG. On its own, that evidence was not incompatible with the possibility that the offence occurred as BG described. Ms. Forrester may not have noticed.
[16] Furthermore, BG testified that the appellant entered the bathroom with her on two occasions. The first time was when she entered the bathroom and attempted to call 911 on her cellphone following Keelin’s second seizure. BG testified that on that occasion the appellant entered the bathroom, locked the door and took her cellphone because he did not want the police involved. BG said the appellant told her not to call 911 again or he would put her phone in the toilet and hurt her. BG testified that it was during that first occasion when Ms. Forrester came to the bathroom door, told them they had to come out and pulled her out of the bathroom after the appellant unlocked the door. However this discrepancy in the evidence is viewed, it was not incompatible with the appellant having had the opportunity to commit the offence as BG testified that she was sexually assaulted at a later point in time, when the appellant followed her into the bathroom again.
[17] There were other inconsistencies between the evidence of BG and Ms. Forrester. BG advised the police that Ms. Forrester told her that earlier in the evening she (Ms. Forrester) had walked in on Keelin and the appellant having sexual intercourse. BG said Ms. Forrester told her that she was angered by this and yelled at the appellant that he was disgusting because Keelin was so young. Ms. Forrester denied that she ever saw Keelin and the appellant engaged in that kind of sexual activity, although she did recall discussion between them about oral sex.
[18] Another area of inconsistency related to who told BG and Keelin to hide when the police arrived. BG said that they hid because the appellant and Kevin told them to do so. Ms. Forrester testified that BG and Keelin chose to hide because they did not want their parents to learn what they had been doing. She said that the men did not tell the girls to hide.
[19] In her reasons the trial judge reviewed and rejected the evidence of Ms. Forrester as either not credible or not reliable. The appellant does not dispute that the trial judge was entitled to do so. However, tracking the second stage of the W.(D.) analysis, the appellant submits that the trial judge erred because she failed to assess whether Ms. Forrester’s evidence, even if not accepted in whole or in part, could, when considered in the totality of the evidence, leave the court in a state of reasonable doubt about whether the appellant had non-consensual sexual contact with BG. The other evidence in the case included alleged internal inconsistencies in BG’s evidence, her consumption of alcohol and drugs and alleged motive to lie. In other words, the appellant submits that in undertaking her analysis of the evidence the trial judge failed to consider the second step of the W.(D.) analysis, consistent with her misstatement of the law in para. 3 of her reasons.
[20] A review of the trial judge’s reasons, read as a whole and taking into account the circumstances of this case, leads me to conclude that despite the trial judge’s misstatement of the law, she did not err as submitted.
[21] Immediately after the misstatement of the law that appears in para. 3 of her reasons and before turning to the evidence, the trial judge said the following, at para. 4 of her reasons:
I must determine whether the evidence of BG, within the context of the totality of the evidence, is sufficiently credible and reliable to pass the high threshold required to sustain a conviction. I must also consider whether the evidence of BG, alone or in conjunction with the remaining evidence, raises a reasonable doubt. There were, as to be expected, inconsistencies both within the evidence of BG and between the evidence of BG and Christine Forrester. The defence submits that the internal inconsistencies within the evidence of BG and the inconsistencies between the evidence of BG and other witnesses raises a reasonable doubt. It is a bedrock principle of our justice system that the onus remains on the Crown to establish beyond a reasonable doubt that the evidence of BG, considered in the light of all the evidence, is sufficient to establish the guilt of Mr. Rajendram.
[22] The trial judge then turned to the evidence. She accurately and thoroughly summarized the evidence of BG, Christine Forrester and the police witnesses. She then turned to the submissions raised by the defence. Under a series of sub-headings, she addressed every issue raised by trial counsel for the appellant in respect of the complainant’s evidence before, under a separate main heading and a series of sub-headings, addressing the discrepancies between the evidence of BG and the evidence of Ms. Forrester. Again, she addressed every issue raised by trial counsel as revealed in the transcript of their closing submissions.
[23] This was followed by the trial judge stating her conclusion that BG was a credible witness and explaining why she made that finding. At para. 145 of her reasons, just before finding the appellant guilty, the trial judge said:
In considering the whole of the evidence, there is nothing that raises a reasonable doubt. My acceptance of the evidence of BG, and where, on both her evidence and within the whole of the evidence, there is no reasonable doubt, establishes that the Crown has met its very heavy burden of establishing the guilt of Mr. Rajendram beyond a reasonable doubt.
[24] The purpose of the W.(D.) formulation of a three stage approach to the application of proof beyond a reasonable doubt is rooted in a concern that it be made clear to jurors that when they are faced with conflicting evidence they must do more than choose between competing versions of events. The standard and burden of proof must be considered in relation to the credibility of the witnesses when conflicts arise in relation to a vital issue. Jurors must be made to understand that they need not firmly believe the evidence favouring an accused in order to have a reasonable doubt. It is enough that the conflicting evidence leaves the fact finder in a state of reasonable doubt as to the accused’s guilt: W.(D.), at para. 27, Smits, at para. 37.
[25] Applied to a judge alone trial, stage two of W.(D.) requires that the trial judge recognize that a reasonable doubt may arise from evidence which the trial judge does not accept. In my view, the additional paragraphs I have quoted from the trial judge’s reasons, which come both before and after her thorough consideration of the entirety of the evidence in reasons which responded to every argument raised by the appellant at trial, show that the trial judge was well aware of that. The authorities make it clear that a judge sitting without a jury is not required to “slavishly adhere” to the W.(D.) formula or approach the evidence in any particular order to demonstrate an understanding of the principles. It is sufficient if the judge’s reasons as a whole show that the trial judge understood that it is not necessary to accept evidence for it to raise a reasonable doubt in the context of the other evidence: R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), [2003] O.J. No. 5253, at para. 22.
[26] The trial judge’s reasons in this case meet that test.
[27] I observe that at para. 4 of her reasons, quoted above, the trial judge said she had to determine whether the evidence of BG was sufficiently credible and reliable to satisfy the Crown’s burden of proof. That was completely correct in the circumstances of this case. BG was the only witness to give direct evidence about the alleged sexual assault.
[28] While the defence at trial submitted that inconsistencies between Ms. Forrester’s evidence and BG’s evidence should undermine BG’s credibility, this was not a case in which anything in Ms. Forrester’s evidence had a direct bearing on whether the sexual assault occurred. The potential effects were indirect. The inconsistencies between Ms. Forrester’s and BG’s evidence went only indirectly to opportunity for the offence to have been committed. Ms. Forrester said she never saw the appellant and BG in the bathroom together. Even assuming Ms. Forrester was credible on this point, she may have missed it. The occasion on which BG said Ms. Forrester interceded when she was in the bathroom with the appellant, which was denied by Ms. Forrester, was not the same occasion as that on which BG said the appellant sexually assaulted her.
[29] The conflicting evidence about whether Ms. Forrester ever told BG she had seen Keelin having sex with the appellant is also collateral to the alleged assault on BG and could only have a secondary impact on the issue of proof of guilt through its potential impact on BG’s credibility. The same comment applies to inconsistencies between the evidence of BG and Ms. Forrester about why and how BG and Keelin ended up hidden in a closet in the basement when the police arrived.
[30] In these circumstances there was nothing inconsistent with the correct application of the burden and standard of proof in the trial judge describing her task as she did at paras. 4 and 145 of her reasons, by focusing on whether BG’s evidence, considered in the context of all the other evidence, proved the appellant’s guilt beyond a reasonable doubt.
[31] The trial judge’s approach specifically recognized that BG’s credibility was essential to establishing the appellant’s guilt and implicitly recognized that a reasonable doubt about her credibility could arise from the conflicts between the evidence of BG and Ms. Forrester considered in the context of all the evidence. This was not a case, such as Smith where the Court of Appeal found, at paras. 26-27, that the trial judge in that case erred because he failed to consider whether the evidence of the appellant’s girlfriend gave rise to a reasonable doubt. In the present case the trial judge considered whether the conflicting evidence from Ms. Forrester raised a reasonable doubt about BG’s credibility and concluded that it did not.
[32] I also point out that the trial judge carefully analyzed the evidence. She then rejected those portions of Ms. Forrester’s evidence which were relevant to the assessment of BG’s credibility as either not credible or not reliable. Those factual findings were open to the trial judge. This is not a case where the trial judge, although not accepting Ms. Forrester’s evidence, failed to take it into account in determining whether she had a reasonable doubt, thereby committing a stage two W.(D.) error. The trial judge explained why she rejected Ms. Forrester’s evidence. Once Ms. Forrester’s evidence was rejected outright, there was no possibility of an acquittal based on the second step in W.(D.). By that point the case fell to be decided at the third stage of the W.(D.) analysis. The trial judge’s reasons make it perfectly clear that based on the evidence which she accepted she was satisfied of the appellant’s guilt beyond a reasonable doubt.
[33] This ground of appeal fails.
The Uneven Scrutiny Submission
[34] The appellant submits that the trial judge “extensively discounted any evidence that went against the complainant and discounted any evidence that favoured the appellant” resulting in the evidence being treated in an “unfair manner”: Appellant’s Factum, at para. 37. This submission is confined to the trial judge’s evaluation of the evidence of Ms. Forrester in comparison to her evaluation of the evidence of BG.
[35] The respondent disagrees and submits that the trial judge consistently analyzed the evidence without differential treatment. In the respondent’s submission, the appellant’s characterization of Ms. Forrester’s evidence as exculpatory is a mischaracterization. The respondent submits that, at its highest, Ms. Forrester’s evidence contradicted BG’s evidence about some of the circumstances that occurred over the course of the night which were not directly related to the commission of the offence. The respondent submits that Ms. Forrester’s evidence was both internally and externally inconsistent and properly attracted scrutiny by the trial judge.
[36] It is an error of law for a trial judge to apply different standards of scrutiny to the evidence that might be described as being in favour of or against an accused. However, it is often said that this is a difficult argument to succeed on due to the high degree of deference owed to a trial judge’s assessment of the credibility of witnesses, whom the trial judge has had the benefit of seeing and hearing.
[37] To succeed on this argument the appellant must be able to point to something in the reasons of the trial judge or elsewhere in the record which makes it clear that the trial judge actually applied different standards: R. v. T.T., 2011 ONCA 51, at paras. 73-74; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. 480 (Ont. C.A.), at para. 59; R. v. Ukumu, 2021 ONCA 91, at para. 11; R. v. Kiss, 2018 ONCA 184, at para. 83; R. v. Radcliffe, 2017 ONCA 176, at paras. 20-26; R. v. George, 2016 ONCA 464. This argument is often viewed as a “veiled invitation to reassess the trial judge’s credibility determination”: R. v. Aird, 2013 ONCA 447, at para. 39.
[38] The appellant advances a number of specific submissions in support of his overall submission that the trial judge applied an uneven standard of scrutiny. As previously mentioned, the submissions focus on the trial judge’s treatment of the areas of inconsistency between the evidence of BG and Ms. Forrester which the appellant relied upon at trial as part of his submission that BG’s evidence was not credible or reliable.
[39] The trial judge dealt with discrepancies between the evidence of BG and Ms. Forrester under a separate main heading commencing at p. 26 of her reasons. At para. 119 of her reasons she noted that there were three substantial areas of inconsistency between these two witnesses. After making some general introductory observations about Ms. Forrester’s testimony, the trial judge then set out each of the three areas of inconsistency under a separate sub-heading and dealt with each, making findings of fact, including findings of credibility and reliability. I will highlight the three areas of inconsistency again before returning to the appellant’s specific submissions.
[40] The first area of inconsistency related to whether Ms. Forrester pulled BG out of the bathroom while the appellant was present in the bathroom as BG testified. BG said this was when she entered the bathroom to call 911 due to Keelin’s seizure. It was before she re-entered the bathroom and was sexually assaulted by the appellant. Ms. Forrester denied that this occurred and said that she never saw the appellant and BG in the bathroom together.
[41] The second area of inconsistency concerned whether Ms. Forrester saw Keelin and the appellant engaged in sexual activity. BG testified that Ms. Forrester said she had seen that and said that she had yelled at the appellant that he was disgusting, due to Keelin’s age. Ms. Forrester denied this.
[42] The third area of inconsistency related to who told BG and Keelin to hide when the police arrived. BG said it was the men. Ms. Forrester testified that the girls chose to hide because they did not want their parents to learn what they had been doing.
[43] I return now to the appellant’s specific submissions. The first submission relates to findings made by the trial judge during the introductory part of her reasons under the main heading, before dealing with the three specific areas of inconsistency. In particular, the appellant submits that the trial judge unfairly “imputed” a motive to Ms. Forrester to give evidence more favourable in certain respects to the appellant than to BG. The appellant submits that there was unfairness and uneven scrutiny because there was no evidence to support such a motive having regard to the fact that such a motive was never put to Ms. Forrester during her testimony.
[44] I respectfully disagree with this submission. From paras. 123 to 126 of her reasons the trial judge was explaining, before dealing with the three areas of inconsistency referred to above, that Ms. Forrester’s evidence “contained substantial contradictions and inherent inconsistencies”. At para. 126 the trial judge noted that Ms. Forrester’s friend, Kevin, had been arrested at the scene and charged with forcible confinement and that Ms. Forrester was aware of that. The trial judge also referred to the age of the girls, the fact that the girls had been supplied with cocaine and that Keelin had seizures. These were all matters of evidence which the trial judge reasonably concluded supported an inference that Ms. Forrester had a motive to both “distance herself from the activities and portray the girls as willing participants”. This was not a speculative conclusion as submitted by the appellant.
[45] The appellant attempts to tie this submission to the uneven scrutiny argument by referring to the way in which the trial judge dispensed with a defence submission earlier, at paras. 110-112 of her judgment. Counsel at trial had submitted that one factor which ought to weigh against BG’s credibility was that, according to Ms. Forrester, BG did not want to leave the party when she had an opportunity to do so after the point when she testified she was sexually assaulted. In discounting that submission the trial judge relied on the fact that this was never put to BG during her testimony, leaving the judge without any evidence as to what BG’s explanation might be. The appellant goes back to the fact that the trial judge imputed a motive to Ms. Forrester without the suggestion of such a motive ever having been put to her.
[46] In my view the circumstances of the two situations are materially different. As I have said, the trial judge referred to a number of circumstances established by the evidence to reasonably infer a relevant motive or bias on the part of Ms. Forrester. Although the motive may not have been put to Ms. Forrester, there was evidence to support the inference that it existed.
[47] The appellant next submits that the trial judge’s reasons demonstrate uneven scrutiny because she discounted Ms. Forrester’s evidence on the basis that her recall was diminished due to her alcohol and drug consumption but did not take the same approach when evaluating BG’s evidence. Both Ms. Forrester and BG had been consuming alcohol and drugs. In making this submission the appellant acknowledges that Ms. Forrester did say that she was “pretty drunk” when she left the condo party, but emphasizes that she also said that the cocaine she did later “balanced” her out and that her memory was “pretty good”. Ms. Forrester also particularized how much she had to drink but said that it was not a lot of alcohol for her.
[48] The appellant submits that despite this evidence the trial judge discounted Ms. Forrester’s evidence while not reaching a similar conclusion with respect to the appellant. The appellant submits that this is unreasonable and, therefore, suggests that the trial judge applied different standards to her assessment of the evidence. The appellant submits that this was compounded by the trial judge referring to BG’s openness to admitting facts which portrayed her in a bad light, one of which was her drinking, as something which enhanced BG’s credibility.
[49] Once again, I do not accept the appellant’s submissions. There was a basis in the evidence for the trial judge to reach the conclusions which she did, and she referred to that evidence when giving her reasons. There were things about which Ms. Forrester agreed she was unsure. She acknowledged that she was “hazy” about what happened at important times. There were parts of her evidence where she demonstrated poor recollection or confusion. Her alcohol and drug consumption were reasonable explanations for all of that.
[50] The trial judge explained why she reached a different assessment concerning BG’s recall for the main events. She dealt with BG’s impairment at paras. 62-65 of her reasons. She found that BG’s memory was at times impaired and acknowledged that BG admitted that her drug and alcohol use “left her scatterbrained” and may have led her to mix some things up. However, the trial judge then referred to a series of specific aspects of the evidence to support her conclusion that BG’s consumption of alcohol and drugs “did not impact the reliability of BG on the essential narrative”. The trial judge did not gloss over the issue. Rather, she came to grips with the issue based on the evidence and provided clear reasons as to why she reached her conclusions. I am unable to see this as a demonstration of uneven scrutiny.
[51] The appellant next contends that the trial judge’s finding that Ms. Forrester was trying to portray herself more favourably than the circumstances warranted shows that an uneven standard of scrutiny was applied by the trial judge. This is based on a submission that the finding is not supported by the evidence. In addition, the appellant submits that because Ms. Forrester acknowledged intoxication, drug use and that Kevin was flushing cocaine when the police arrived, it is “difficult to understand how she portrayed herself in anything other than a fair manner”. The appellant adds that the trial judge used her finding that BG was not afraid to admit facts that portrayed her in a bad light to bolster BG’s credibility. However, Ms. Forrester made many such concessions but did not get the benefit of the same treatment.
[52] I am not persuaded by these submissions. The trial judge had the benefit of seeing and hearing the witnesses. That is an important consideration. In addition, before making the impugned finding at para. 125 of her reasons, the trial judge referred to what she termed “substantial contradictions and inherent inconsistencies” in Ms. Forrester’s evidence, to support her finding. The trial judge noted that Ms. Forrester testified that after Keelin’s first seizure she said she would watch her, yet after the seizure she did not do that but went to a bedroom with Kevin. The trial judge also noted that Ms. Forrester said that when she learned the girls were only 16 she was “pissed” and that she let her displeasure be known to the men. Yet she took no steps to protect the girls, although she was aware that the appellant continued to provide them with cocaine.
[53] I generally agree with the respondent’s submission on this point, that the trial judge’s finding was in reference to Ms. Forrester’s evidence about being caring and motherly towards the girls, something not borne out by the view the trial judge took of the evidence – a view that was open to her. There was a solid basis in the record which could reasonably support the trial judge’s finding. A reading of the trial judge’s reasons as a whole adds additional support for the respondent’s submission and the trial judge’s conclusion was about Ms. Forrester’s false portrayal of herself as a sort of mother-hen.
[54] The final submission advanced under this ground of appeal is found in the appellant’s factum but was not pressed in oral argument.
[55] The appellant submits that the trial judge “ignored inconsistencies in the complainant’s evidence that appeared irreconcilable” on the issue of whether BG had a motive to falsely claim that she had been sexually assaulted. The appellant submits that this is reflected in what he submits were “inconsistent findings” made by the trial judge in order to get around problematic aspects of BG’s testimony related to her motive to lie. This submission is based on the following circumstances.
[56] BG was questioned about why she did not call her father to pick her up if she was uncomfortable, as she said she was. It was submitted at trial that this was a factor which undermined her credibility. BG responded that she did not want her father to find out what she was engaged in and, more particularly, it was because her father would then prevent her from associating with her friend Keelin, of whom he disapproved.
[57] Commencing at para. 85 of her reasons the trial judge dealt with this under a specific sub-heading. She accepted BG’s explanation as making sense and concluded that the fact that BG did not call her father did not detract from her credibility. The trial judge’s finding was based on BG’s concern about her father interfering with her friendship with Keelin.
[58] The appellant submits that this finding is inconsistent with the trial judge’s later finding that BG did not have a motive to make a false accusation of sexual assault because she was not worried about repercussions from her father.
[59] The trial judge dealt with the defence submission that BG made up the sexual assault to avoid getting in trouble with her father under a separate subheading, at paras. 113 to 118 of her reasons. Her Honour provided four separate reasons, each of which is firmly supported by the evidence, for concluding that she did not accept that the motive alleged existed. These included that there was considerable delay by the complainant in revealing the sexual assault after she ended up in a police interview room. It also included that BG asked the police not to disclose the sexual assault to her father because she knew that the information would hurt him.
[60] In my view these findings by the trial judge are not inconsistent. The first, in relation to BG not calling her father to get her from the party, was reasonably found by the trial judge to have been motivated by BG’s concern that she would be cut off from her friend Keelin. That was before she had been sexually assaulted.
[61] The second finding was supported by the evidence that BG did not complain immediately and thereafter did not want her father to be informed of her allegation. Those circumstances, firmly rooted in the evidence, are totally at odds with BG having the motive the appellant attributed to her.
[62] These circumstances do not demonstrate uneven scrutiny or unfairness in the trial judge’s reasoning process.
[63] When I consider all of the appellant’s submissions under this ground of appeal together, I am not persuaded that the trial judge applied different standards or engaged in uneven scrutiny of the evidence. The trial judge considered and dealt with each submission made by defence counsel at trial. I observe that this is the opposite of uneven scrutiny: Ukumu, at para. 12.
[64] A trial judge’s credibility findings are entitled to a high degree of deference. No palpable or overriding error has been shown. The trial judge’s findings are reasonable and supported by the evidence. This ground of appeal fails.
Conclusion
[65] The appeal is dismissed.
F. Dawson J.
Released: March 29, 2021
COURT FILE NO.: SCA (P) 1807/19
DATE: 2021 03 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JEHROOMIEN RAJENDRAM
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: March 29, 2021