Court File and Parties

COURT FILE NO.: 20-6789-00AP DATE: 2022/04/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – G.B. Appellant

Counsel: Siobhain Wetscher, for the Crown Meaghan McMahon, for the Appellant

HEARD: February 2, 2022

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this decision as the Complainant may not be published, broadcasted, or transmitted in any manner. This decision complies with this restriction so that it can be published.

REASONS FOR DECISION

M. Smith J

[1] G.B. (the “Appellant”) appeals his conviction of one count of assault with a weapon and one count of sexual assault by Justice K. Fraser of the Ontario Court of Justice in Ottawa. The conviction relates to events that took place on August 23, 2019.

[2] The Appellant appeals his convictions on two grounds: (a) that the trial judge’s Reasons for Judgment fail to address significant issues with the Complainant’s evidence, resulting in an error in law; and (b) that the trial judge applied a stricter level of scrutiny to the Appellant’s evidence than to the complaint’s evidence, resulting in an error of law. The Appellant asks this court to allow his appeal and to order a new trial.

[3] For reasons that follow, the summary conviction appeal is dismissed.

Evidence and findings of the trial judge

[4] The trial judge first set out the undisputed facts:

a. The Appellant met S.B. (the “Complainant”) in 2002 and they got married in 2012. The marriage between the Appellant and the Complainant was strained for a couple of reasons: the Appellant had been off work because of some mental health issues, and their attempts at conceiving a second child had been unsuccessful. The strain on the marriage reached a point where the Appellant moved out of the matrimonial home to reside in a trailer that the couple owned. The Appellant returned to the matrimonial home one or two weeks before the events of August 23, 2019. By mutual agreement, the Appellant slept in the spare bedroom, while the Complainant slept in the master bedroom.

b. On August 23, 2019, the Appellant had gone out with someone around 9:00 p.m. or 9:30 p.m. While he was out, the Complainant sent a text message to the Appellant, asking that he bring home some toothpaste. The Appellant did not appreciate being contacted by the Complainant when he was in someone’s company.

c. The Appellant returned home at approximately 12:45 a.m. He noticed that the dog was waiting near the front door, and he decided to take the dog upstairs and put him in the master bedroom, where the Complainant was sleeping.

[5] The events that transpired after the Appellant’s arrival to the matrimonial home differed considerably between the Appellant and the Complainant. The trial judge set out the different versions:

The Appellant’s evidence

a. The Appellant opened the master bedroom door and gently placed the dog in her bed.

b. The Complainant woke up. The Appellant told the Complainant that he did not appreciate receiving a text from her when he was out with someone else. An argument ensued.

c. The Complainant was yelling and hyperventilating. The Appellant raised his voice. The Complainant screamed at him to get out, but the Appellant refused because he wanted to finish the conversation.

d. The Appellant noticed that there were anal beads with fecal matter on them, located on the nightstand drawer beside the Complainant’s bed. The Appellant was frustrated at seeing the anal beads because they would have been in plain view of their six-year-old daughter. The Appellant picked up the anal beads, tossed them on the bed and they landed a foot away from the Complainant’s chest.

e. The Complainant threatened to call the police, ruin his life, and have his daughter taken away from him. The Appellant grabbed the Complainant’s telephone. He left the matrimonial home and decided to return to the trailer. On his way to the trailer, he remembered that he still had the Complainant’s telephone, and he tossed out of the car window.

f. The following day, the Appellant was driving to work and passed by the location where he had thrown out the telephone. He was able to retrieve it. The screen had been smashed. He returned to the matrimonial home to pick up his work uniform and pass but nobody was home. He used a key to gain entry and was able to retrieve his work uniform.

g. The Appellant attended at the Complainant’s workplace to pick up his work pass, in exchange for her telephone.

The Complainant’s evidence

a. The Complainant was awoken because the Appellant threw the dog on her bed.

b. The Appellant was expressing his anger to the Complainant for communicating with him while he was with someone else. The Complainant remained passive during the exchange.

c. The Appellant pulled the blankets and pillows from the bed and tossed them on the floor. He then took the Complainant’s telephone, Apple watch, and glasses that were on her nightstand. He left the room for five minutes and returned with the same items.

d. The Appellant reached into the Complainant’s nightstand drawer, removed the anal beads, and tried to put them in her mouth. The Complainant kept her mouth closed and covered her face. The Appellant angrily whipped her in the chest with the beads and tried to insert the beads in her anus. The Complainant laid in a fetal position, closed her legs, and prevented the Appellant from inserting the anal beads.

e. The Complainant reached for her telephone on the nightstand to call the police. The Complainant initiated the call to the police, but the Appellant took the telephone and left the matrimonial home.

f. The Complainant went downstairs and found another telephone. She called the police once again and locked herself in the bathroom.

g. The Complainant called in sick on August 24, 2019.

h. The Complainant retrieved her telephone at her workplace, 48 hours after the incident.

i. The Complainant spent Christmas day of 2019 with the accused and their daughter. They are co-parenting their daughter on a 50-50 basis.

j. During the separation, the Complainant contacted the Appellant and asked him to go for a drink together.

[6] The trial judge determined that the matter turned on the credibility of the parties and that the R. v. W.D.S. principles would apply.

[7] The trial judge expressed that he had issues with the Appellant’s evidence, including:

a. First, he queried why it was critical for the Appellant to bring the dog into the Complainant’s bedroom, when the door was closed and would indicate that the Complainant wanted privacy. The dog was familiar with the spare bedroom and the Complainant’s bedroom, moving from one room to the other during the night.

b. Second, after handling the anal beads with fecal matter, the Appellant did not think it appropriate to clean his hands. Common sense would dictate that if the Appellant was repulsed by the soiled anal beads and touched them, he would have cleaned his hands.

c. Third, the Appellant was concerned about his daughter seeing the anal beads with fecal matter, yet he left them on the bed, before departing.

d. Fourth, the Appellant took the Complainant’s telephone because of his concern that the Complainant would call the police. However, he returned the next day, without concern that the police would be looking for him.

e. Fifth, the Appellant acknowledged that it was not proper to enter the Complainant’s room without her consent, but he was frustrated and annoyed that she had contacted him and seeing that the dog was not in her room when he returned to the home.

[8] The trial judge was impressed by the Complainant’s evidence, having found her evidence to be given in a measured manner, without embellishment or exaggeration. The trial judge assessed the Complainant’s evidence as follows:

a. First, the Complainant was hit once with the anal beads, causing no bruising.

b. Second, when the Complainant called 911 and mentioned to the dispatcher about the Appellant’s mental health, it was done to assist the police in case they encountered the Appellant.

c. Third, there were two 911 calls made by the Complainant. The calls were made to avoid the escalation. The first call was abbreviated but the second one was lengthier. The Complainant was crying and extremely upset. The officer that attended the scene observed that the Complainant was distraught by the events.

d. Fourth, the Complainant’s viva voce evidence that the dog weighed 20 pounds, as opposed to a previous statement that he weighed 15 pounds, was not a significant inconsistency.

[9] The trial judge found the Complainant’s testimony to be fair and consistent. The trial judge found that the police officer’s testimony corroborated the evidence regarding the Complainant’s demeanour. Conversely, the trial judge found the Appellant’s testimony to be inconsistent on some points and illogical. The trial judge did not accept the evidence of the Appellant and found that it did not raise a reasonable doubt in the proceedings.

ANALYSIS

Issue #1 – did the trial judge fail to address significant issues with the Complainant’s evidence, resulting in an error in law?

Legal principles

[10] The trial judge’s failure to articulate reasons in relation to key issues which require an explanation can be characterized as an error of law: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 39.

[11] It is important to have a functional and contextual reading of the trial judge’s reasons when those reasons are alleged to be insufficient: R. v. Sheppard, 2002 SCC 26, at paras. 28 to 33.

[12] Reasons serve three functions: (a) they tell the parties affected by the decision why the decision was made; (b) they provide public accountability of the judicial reason; and (c) reasons permit effective appellant review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11.

[13] Appellant courts must not finely parse the trial judge’s reasons in a search for errors. The task is narrower: an assessment of the reasons, read in context and as a whole, in light of the live issues at trial, explains the “what” and “why” of the trial judge’s decision: R. v. G.F., 2021 SCC 20, at para. 69.

Position of the parties

[14] The Appellant submits that the trial judge failed to address significant issues with the Complainant’s evidence, and it is not otherwise explained in the trial record. More specifically, the Appellant argues that the trial judge was required to explain how he reconciled the Complainant’s inconsistent testimony, in these four areas of her evidence:

a. The Complainant testified that she had her arms crossed in an “X” formation across her chest and face with her palms facing out during the assault with the anal beads. Despite this positioning, the Complainant testified that the Appellant had struck her on the chest with the anal beads.

b. The Complainant testified that the Appellant struck her with considerable force in the chest with the anal beads but admitted that she did not observe any mark on her chest because of the assault.

c. The Complainant testified that she was lying on her bed curled up in the fetal position when the Appellant attempted to force the anal beads into her anus. In a previous police statement, the Complainant had said that when she was being sexually assaulted, her legs closed. The Complainant denied that she had changed her story. The Complainant said that she may have changed the wording, but the description of the incident remained the same.

d. The Complainant testified that when the sexual assault happened, the Appellant was standing at the corner of the foot of the bed. During cross-examination, the Complainant changed her evidence, explaining that the Appellant was at the side of the bed, and more in the middle.

[15] The Appellant submits that the trial judge’s failure to articulate how he resolved these four inconsistencies in the Complainant’s evidence is a reversible error.

[16] The Crown submits that the trial judge was not required to provide a full account of every detail of his reasoning, address every argument laid out by counsel or each piece of evidence. The trial judge clearly explained his conclusion in a manner that demonstrated that he was alive to the submissions made by counsel. Any issues raised by trial counsel, but not specifically mentioned in the trial judge’s reasons, are very minimal or explained by the trial record.

Discussion

[17] The trial in this case was straightforward with limited evidence. The main issue was credibility and the trial judge was alive to the issues in this trial. In his reasons, the trial judge properly stated: “the principles of R. v. W.D.S. will apply since the matter turns on the credibility of the parties.” (emphasis added)

[18] It is trite to say that assessing credibility is not a science. It is often difficult to express with precision all impressions and reconcile the versions of each and every event of an incident. The trial judge was in the unique position to see and hear the witnesses, including the Appellant, the Complainant, and the police officer. He found some of the Appellant’s evidence to be inconsistent and illogical, while he found the Complainant’s evidence to be fair, consistent, without embellishment or exaggeration. The trial judge also found the Complainant’s demeanour to be corroborated by the police officer. The trial judge’s perceptions and findings of these witnesses should be respected, and I see no reason to displace those.

[19] In my view, the trial judge’s reasons clearly articulated why he decided that the Appellant was guilty of the charges of assault with a weapon and sexual assault. The reasons, supported by the record, sets out an intelligible and logical path as to how the trial judge arrived at his conclusion.

[20] The trial judge was not required to refer to every piece of evidence, he was not required to record each and every argument or reconcile every frailty in the evidence, including the alleged inconsistencies raised by the Appellant.

[21] For several reasons, I find that the trial judge’s decision coupled with the trial record and establishes the logical conclusion that he reached.

[22] First, although the trial judge did not raise in his decision the four alleged inconsistencies identified by the Appellant, I find that it was not necessary for the trial judge to reconcile the Complainant’s evidence on these four points.

Inconsistency #1

[23] The evidence of the Complainant regarding the placement of hands remained consistent throughout the Complainant’s testimony. She stated that her hands were over her mouth and demonstrated the positioning to the court. Trial counsel never questioned or challenged the Complainant on the possibility of the anal beads making contact with her skin, despite the Complainant’s hand positioning. The trial judge observed the Complainant’s demonstration and was the best placed to consider whether contact was possible. In my view, there was no need to address this issue because the record was clear, and the Complainant’s evidence was not inconsistent (page 72 of the court transcript):

Q. Okay, what happens in the interim? A. That’s whenever he whipped me in the chest with them? Q. Okay. Okay, and you explained that before that he had whipped just once? A. Yes. Q. And when he whipped it were you still laying on your back on the bed? A. I was, yes. Q. Were you doing anything with your hands? A. They were still shielding my face.

Inconsistency #2

[24] The Complainant testified that she had been whipped by the anal beads with such force that it stung, but she maintained that it did not leave a mark. Trial counsel suggested that it should have left a mark, but the Complainant disagreed. The Complainant did not waver in her evidence. Her evidence was not inconsistent. A reconciliation of the Complainant’s evidence was not required (page 69 of the court transcript).

Q: Okay. How much force did he use? A: Um, it was pretty forceful, it stung. Q: Okay. So, it was enough force that you could – you could feel a stinging sensation? A: Yes. Q: Okay. And so, it was fairly hard then? A: Yes. Q: Okay. I’m going to suggest to you that had he done that, hit you fairly hard against the chest that it would have left some sort of mark? A: Okay. Q: Okay, so I am suggesting to you that he never actually hit you with those – with those anal beads? A: I don’t agree with that statement.

Inconsistency #3

[25] Turning to the Complainant’s leg positioning during the sexual assault, the Complainant testified in the examination-in-chief that shortly before the sexual assault, she was lying on her back. Then, she repositioned her body (page 41 of the court transcript): “So, after he whipped me with it I had turned over to protect myself into a fetal position. He would’ve came around the bed, um, where he would be not at the foot of the bed but at the corner of the bed. So, while I was in the fetal position I would’ve been facing his side of the bed, to the right side of the bed.”

[26] During cross-examination, trial counsel questioned the Complainant regarding her statement to the police where she said the following: “So, my legs were closed and he wasn’t successful in getting it in, but it definitely was forcing to try. I kept my legs down so he wouldn’t have any access.” Despite this statement, the Complainant was consistent in her evidence that she was in a fetal position (page 74 of the court transcript):

Q: Okay. So, I am going to suggest to you that what you’re saying here is that you were – had your legs together and that was what was preventing him from putting that into your anus? A: I had my legs together in a fetal position.

[27] Trial counsel continued to challenge the Complainant regarding her positioning (page 75 of the court transcript) but again, the Complainant was consistent in her evidence:

Q: Okay. But what I am suggesting to you is that you never were curled up in the fetal position? A: I was definitely curled up in the fetal position.

[28] The Appellant contends that because the Complainant’s evidence regarding her leg positioning varied, the trial judge was required to resolve these inconsistencies. I disagree. While the Complainant may have omitted to tell the police officer that she was lying in the fetal position, the omittance was not fatal and it was not a major contradiction. The record clearly discloses that the Complainant consistently maintained her testimony regarding the fetal position and confirmed that her legs were closed. The Complainant was not changing or offering different versions of the story. Furthermore, the trial judge was alive to this issue. In the trial judge’s recitation of the Complainant’s evidence, he referred to the Complainant laying in the fetal position with her legs closed. In my view, the trial judge was not required to address this piece of evidence in his reasons because it was explained in the record.

Inconsistency #4

[29] The last inconsistency that was not addressed by the trial judge related to where the Appellant was standing when he attempted to insert the anal beads in the Complainant’s anus. During her examination-in-chief, the Complainant testified that the Appellant was standing as follows (page 41 of the court transcript): “He would’ve came around the bed, um, where he would be not at the foot of the bed but at the corner of the bed.” The Complainant clarified that the Appellant was at the bottom corner of the bed. When cross-examined on this point, the Complainant described it in the following manner (pages 76 and 77 of the court transcript):

Q: Okay. So, if he is at the bottom of the bed then he – and you are in the fetal position then he can’t reach up to – to your butt? A: He wasn’t at the bottom of the bed, he was at the bottom of the bed on the side. Q: Okay. So, he – he’s still on that same side of the bed but he has moved down? A: Yes. Q: How far had he moved down? A: I – I can’t recall. Q: Can you recall if he was closer to the corner of the bed or to the middle? A: He wasn’t at the corner of the bed, he would have been between the middle and just – just after the middle part of the bed towards the end of the bed.

[30] While there was a slight divergence in her testimony regarding the exact location, it was not significant because the Complainant still places the Appellant on the general area that she described initially. I agree with the Crown’s position that the Complainant’s evidence on this point was not glaringly inconsistent. In my view, this inconsistency did not need to be parsed out in the trial judge’s reasons.

[31] Second, even if I was to accept the Appellant’s position that the trial judge should have addressed some or all the foregoing inconsistencies in his reasons, I am of the view that the result would have been the same. As outlined in his reasons, the trial judge set out several examples in his decision that led him to reject the Appellant’s evidence, while finding that the Complainant’s evidence was fair and consistent. Because of the trial judge’s credibility findings, I do not believe that his conclusion would have been changed.

[32] Third, during closing submissions, trial counsel conceded that the Complainant’s evidence was: “largely consistent between her examination-in-chief and cross.” She then said: “This isn’t a situation where there are a number of huge glaring inconsistencies. She was calm. She was careful in her responses. But I would still submit that there are issues that are perhaps more nuanced in how we see her credibility and reliability.” (emphasis added).

[33] Fourth, I believe that the trial judge considered the detailed submissions made by the trial counsel and the Crown. He engaged trial counsel on the issue of the 911 call to make sure that he thoroughly understood the submission being advanced on behalf of the Appellant. I am satisfied that the trial judge considered the totality of the evidence and was alert to the Appellant’s position that there were inconsistencies in the Complainant’s evidence.

[34] Fifth, the trial judge’s reasons are not boilerplate, and they were far from being inadequate. In my view, the trial judge appropriately considered whether the evidence established the Appellant’s guilt beyond a reasonable doubt. While the trial judge did not provide a full account of every detail in his reasoning, he nonetheless provided a detailed analysis of the evidence, he established a clear, intelligible, and reasoned pathway to conviction, and he made appropriate findings of credibility that deserve deference.

Disposition

[35] This ground of appeal fails.

Issue #2 – did the trial judge fail apply a stricter level of scrutiny to the Appellant’s evidence than to the Complainant’s evidence, resulting in an error in law?

Legal principles

[36] The principles regarding uneven scrutiny of evidence were set out in R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, at paras. 23 to 26:

First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[37] In a recent Ontario Court of Appeal decision, the court reiterated the notorious difficulty that exists in successfully arguing this ground of appeal. In R. v. G.M.C., 2022 ONCA 2, [2022] O.J. No. 28, the court wrote at paras. 44 and 45 the following:

44 As Doherty J.A. observed in relation to an uneven scrutiny ground of appeal in Howe, it is not enough to show that the trial judge failed to say something they could have said in assessing credibility or expressly set out the legal principles relevant to that credibility assessment, or that a different trial judge could have reached a different conclusion on credibility. The appellant must point to something in the reasons or the record that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: at para. 59.

45 This observation was recently referred to by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, who observed that the Supreme Court has never ruled on the issue of whether uneven scrutiny is an independent ground of appeal. She noted that various provincial appellate courts have stressed that "it is a notoriously difficult argument to prove" and that "[c]redibility findings are the province of the trial judge and attract significant deference on appeal": at para. 99. She expressed "serious reservations about whether "uneven scrutiny" is a helpful analytical tool to demonstrate error in credibility findings." She continued, at para. 100:

As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge's credibility findings. Even in Howe, Doherty J.A. ultimately chose to frame the uneven scrutiny argument slightly differently: para. 64. Rather than say that the appellant had demonstrated uneven scrutiny of the evidence, Doherty J.A. explained that the essential problem in the trial judge's reasons was that he had "failed to factor into his assessment of [the complainant's] credibility his finding that she deliberately lied on important matters in the course of testifying in reply": para. 64. In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., R. v. Kiss, 2018 ONCA 184, at paras. 88-106; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe, uneven scrutiny easily overlaps with other arguments for why a trial judge's credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict.

Position of the parties

[38] The Appellant submits that the trial judge applied a stricter level of scrutiny to the Appellant’s evidence than to the Complainant’s evidence, resulting in an error of law.

[39] The Appellant says that the trial judge identified five issues with the Appellant’s evidence and the trial judge failed to consider any of the Appellant’s explanations. By contrast, despite trial counsel highlighting five inconsistencies with the Complainant’s evidence, the trial judge only considered one of them. It is submitted that the trial judge should have considered all five inconsistencies because it called into question the physical feasibility of the Complainant’s account of events for both the assault and sexual assault.

[40] The Crown argues that the trial judge gave equal consideration to the parties’ evidence and addressed issues with the evidence of the Complainant and the Appellant. The Crown submits that the trial judge measured both the Complainant and the Appellant’s evidence with the same ruler. It is submitted that there is nothing in the trial record or in the trial judge’s decision to suggest an unequal scrutiny was applied to the parties.

Discussion

[41] As set out in the legal principles section above, the Appellant’s burden is a heavy one. To succeed in the argument that the trial judge applied different levels of scrutiny to the evidence of the parties, the Appellant must meet a high threshold, namely that there is something significant in the trial judge’s reasons or the record to show that the trial judge used a faulty methodology in deciding credibility.

[42] In my view, the Appellant has failed to meet the burden. I am not satisfied that the trial judge engaged in an uneven scrutiny of evidence of the Appellant and the Complainant.

[43] I agree with the Crown’s submissions that the trial judge’s decision centered around logic and consistency. The trial judge questioned the Appellant’s logic and identified five issues that he had with the Appellant’s evidence:

a. The Appellant believed that it was critical to bring the dog into the Complainant’s room, when her bedroom door was closed.

b. The Appellant entered the Complainant’s room out of habit and frustration, all while knowing that he should not enter the room without her consent.

c. The Appellant did not wash his hands after handling anal beads that had fecal matter on them.

d. The Appellant threw the anal beads onto the bed despite being worried about his daughter seeing them.

e. The Appellant grabbed the Complainant’s phone for fear that she would call 911 and ruin his life. Yet, the Appellant returned to the matrimonial home the next day without concern that the police might be looking for him.

[44] The Appellant submits that the trial judge did not consider the Appellant’s explanations regarding the above issues. I disagree. The trial judge clearly indicated in his reasons why he did not accept the evidence given by the accused on these issues and called the Appellant’s logic into question. The trial judge found the Appellant’s evidence “to be at some points inconsistent and illogical as indicated.” (page 186 of the court transcript). The conclusions reached by the trial judge were fair and supported by the record.

[45] Regarding the Complainant’s evidence, as I found earlier, it was not necessary for the trial judge to address each inconsistency raised by the Appellant. Either the inconsistency was not significant, or it was explained in the record. In any event, the trial judge did address the Complainant’s evidence in his reasons, ranging from the alleged inconsistency in the weight of her dog, to her evidence about being hit with the anal beads without leaving a mark, and to her 911 calls to the police. The trial judge accepted the Complainant’s evidence. Importantly, the trial judge found that the Complainant’s demeanor at the scene was corroborated by the police officer. Based on the record, the trial judge was entitled to make these determinations regarding the Complainant’s evidence.

[46] Having read the trial judge’s decision and carefully reviewed the record, I am not satisfied that a different level of scrutiny was applied in assessing the evidence of the parties. I am of the view that the trial judge took a balanced approached and appropriately made his credibility assessments on the totality of the evidence.

Disposition

[47] This ground of appeal fails.

CONCLUSION

[48] For the reasons given, the Appellant’s appeal is dismissed.

M. Smith J

Released: April 1, 2022