COURT FILE NO.: CR-21-168-00AP
DATE: 2023/11/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. M.B.[^1]
BEFORE: Justice I.F. Leach
COUNSEL: Andrea E. Mason for the Crown (Respondent)
Robert Sheppard, for M.B. (Appellant)
HEARD: February 28, 2023
ENDORSEMENT
[1] Pursuant to ss.812(1)(a) and 813(a) of the Code, the appellant appeals from his summary conviction for sexual assault, imposed on April 8, 2021, by Poland J. of the Ontario Court of Justice – Youth Justice Court.
[2] The sole ground of appeal identified in the appellant’s Notice of Appeal Against Conviction, dated June 14, 2021, is that the trial judge erred in applying different levels of scrutiny in considering the evidence of the complainant and the evidence of the appellant, thereby impacting against the reasonableness of the verdict.
Further background and context
[3] I have reviewed and considered the material provided in relation to this appeal in its entirety, and will comment further on particular underlying facts and factual disputes during the course of my analysis below.
[4] However, by way of initial background and context, I note that events and developments leading to this appeal include the following:
a. In the late afternoon or early evening of Saturday, January 11, 2020, the female complainant G.M., (15 at the time), attended with her female friend B.M., (also 15 at the time), at the rural home of J.P., (another female friend who was 17 at the time and attended the same high school as G.M. and B.M.), where a group of approximately 8-10 friends had gathered to socialize, and where some alcohol was consumed. J.P and G.M. had organized the gathering.
b. Later that evening, or in the early morning hours of Sunday, January 12, 2020, B.M. used her cellular phone to contact C.N., (a male, 17 at the time, who also attended the same high school, and who was someone whom B.M. knew to be a licensed driver), asking that he come to the residence of J.P. to provide transportation so that B.M. could go into town to purchase some food for the gathering. In particular, it was contemplated that fast food would be purchased from a McDonald’s restaurant in the town of Strathroy. As B.M. did not wish to travel on her own to purchase the food, and J.P. wished to remain at her home as she was hosting the gathering, B.M. asked G.M. to accompany her on the trip to purchase that food and G.M. agreed to do so.
c. Sometime after midnight, (i.e., in the early morning hours of Sunday, January 12, 2020), C.N. then arrived at the residence of J.P., having travelled there in the front passenger seat of an extended cab pickup truck operated by M.B., the appellant, who was 17 at the time. The two individual front seats of that vehicle, (i.e., the driver’s seat and the front passenger seat), were separated by a raised console in the middle of the vehicle and were accessed by two principal doors, (i.e., one on each side of the vehicle), that opened in the standard manner. The seating positions on the rear “bench seat” of the vehicle were not separated from each other and were accessed by two smaller “half” doors, (i.e., one on each side of the vehicle), that opened by swinging outward towards the rear of the vehicle once the principal doors were opened.
d. After arriving at the residence of J.P. in the appellant’s vehicle, C.N. and the appellant M.B. did not enter the home, but instead waited in the laneway of the property for B.M. and the person or persons travelling with her to emerge from the residence. While doing so, C.N. repositioned himself from the front passenger seat of the appellant’s vehicle to a location on the vehicle’s rear bench seat, behind the vehicle’s front passenger seat.
e. B.M., accompanied by G.M., then emerged from the residence. Both girls knew C.N. and M.B., as all four attended the same relatively small high school. At trial, however, none of the four described their relationship with each other as being anything more than acquaintances. As M.B. was occupying the driver’s seat, and C.N. was occupying the rear bench seat on the passenger side of the vehicle, B.M. got into the rear bench seat to the left of C.N., and G.M. entered the front passenger seat of the vehicle to the right of the appellant.
f. During the driving journey that ensued, (i.e., after M.B., C.N., B.M. and G.M. drove away from the residence of J.P. in the appellant’s truck), it was raining heavily. Because one or both of the vehicle’s windshield wipers was/were not working properly, at some point a decision was made that, instead of travelling to the McDonald’s restaurant in Strathroy before returning to the residence of J.P., (as B.M. and G.M. had contemplated and requested), the vehicle instead would travel to and from a much closer Tim Horton’s restaurant located in the town of Parkhill; a drive from J.P.’s residence that normally would take approximately 5-10 minutes.
g. In the result, however, the entire journey from J.P.’s residence to the Tim Horton’s restaurant and back to J.P.’s residence took considerably longer, (i.e., from 40-120 minutes, with four of the five witnesses agreeing it lasted approximately 90 minutes),[^2] with the vehicle travelling along several unlit back roads of Middlesex County. It was not disputed that the vehicle also stopped twice on the way to that Tim Horton’s restaurant in Parkhill, with C.N. and B.M. exiting the vehicle via the passenger side doors during the second such stop to stand outside and nearby in the rain for a time, while M.B. and G.M. remained inside the vehicle, following which C.N. and B.M. re-entered the vehicle via the passenger side doors before it then travelled on to the Tim Horton’s restaurant in Parkhill.
h. What happened during the journey from J.P.’s residence to that Tim Horton’s restaurant in Parkhill, in relation to sexual activity, was the subject of disagreement. In that regard, and only by way of summary:
i. There was no dispute that, during the journey, sexual activity had occurred between M.B. and G.M. in the front passenger area of the vehicle, and between C.N. and B.M. in the rear passenger area of the vehicle.
ii. During the course of her testimony, G.M.’s description of what happened in that regard included the following assertions:
Shortly after the drive commenced, M.B. began grabbing her hand as she repeatedly tried to pull it away. M.B. then began touching her inner thigh over her clothing, which prompted her to shift her legs towards the passenger window. During those actions, M.B. said “Let’s do something cool”, (which G.M. understood as a reference to sexual activity), and G.M. responded by saying “No”; a response that caused M.B. to stop touching her for approximately one minute before he began touching her again.
After driving for approximately 10 minutes, M.B. pulled the vehicle to a stop at the side of the road for approximately 5 minutes, during which he continued to grab at G.M.’s hand, pulling her closer to the centre console of the vehicle, while once again touching her thigh and repeatedly saying “Let’s do something cool.” G.M. temporarily succeeded in changing the topic by speaking about M.B.’s brother, (who was closer in age to G.M.), which prompted M.B. to continue driving.
After the driving had resumed, M.B. once again began grabbing G.M. as he was driving, while G.M. kept saying she “didn’t want to do anything”, in turn prompting B.M. to say: “Don’t make her do anything she doesn’t want to do”. When M.B. responded that he was not doing that, G.M. said: “It feels like you are”, or “Yes you are”. G.M. also recalled saying “If we’re not going to McDonald’s, can we go home?”, but did not recall receiving a response.
After driving a further distance, M.B. once again pulled the vehicle to the side of the road, continued to grab at G.M. as before, and then pulled her by the arm over the centre console such that G.M. was on top of him while he was trying to kiss her. At the same time, she was resisting, not kissing M.B. back, trying to get off him, and saying “No”. M.B. then repeatedly told G.M. she had to suck his penis in order to go home, or for them to keep driving. That was accompanied by M.B. unbuttoning his pants and removing his penis, following which he grabbed G.M. by the hair and pushed her hand and then her head up and down onto his penis; i.e., forcing her to perform initial masturbation of his penis with her hand, and then fellatio. In the course of cross-examination, G.M. also recalled M.B. having her pants down and “smacking” her “butt” with one hand while that was happening, but could not remember M.B. “fingering” her, or saying to M.B. that two fingers would be better than one in that regard.
During the course of the above events, G.M. initially thought C.N. and B.M. were “making out” or “doing something with each other”, and at some point then became aware that B.M. was performing fellatio on C.N. in the rear seat of the vehicle.
At some point during the fellatio she was being forced to perform on M.B., G.M. managed to push herself up and once again indicated to M.B. that she wanted to stop. At that point, M.B. then asked C.N. and B.M. to exit the vehicle. In response, B.M. asked G.M. if she wanted B.M. to exit the vehicle, and G.M. said no. However, G.M. also was scared and felt that, if she did not do what M.B. wanted her to do, she and B.M. “weren’t going to get back home”. She therefore “just wanted it all over with”. In the result, B.M. temporarily exited the vehicle with C.N., and waited outside.
After C.N. and B.M. had left the vehicle, M.B. once again began pushing G.M. up and down on his penis, forcing her to engage in further fellatio until she said she could not do it anymore. At that point, G.M. says, her top was pulled up and M.B. masturbated himself to a climax, (G.M. believed), while staring at G.M. and complimenting her as she was crying. G.M. then recalled opening the right door of the vehicle to spit outside, as she was “feeling gross”, after which C.N. and B.M. re-entered the vehicle, and it proceeded to the Tim Horton’s restaurant in Parkhill.
iii. During the course of her testimony, B.M.’s description of what happened in that regard included the following assertions:
She said that, after leaving J.P.’s residence, M.B. “just kind of drove around”, prompting her and G.M. to ask if they were going to McDonald’s. In response, both M.B. and C.N. said words to the effect of “I don’t know, are we?”
B.M. said that, after further driving, she and G.M. then asked if they could just go back to J.P.’s residence if they were not going to go to McDonald’s. In response, both M.B. and C.N. said that B.M. and G.M. first had “to do something cool”, after which B.M. recalls things “getting bad”.
In that regard, B.M. acknowledged having then engaged in sexual activity with C.N. in the rear seat, (i.e., engaging in kissing that progressed to her performing fellatio on C.N.), while hearing G.M. repeatedly saying “no”; something which caused B.M. to stop and say, at one point: “If she’s saying no, you got to stop whatever you’re doing”. However, C.N. told her not to worry about what M.B. and G.M. were doing.
B.M. recalled looking at the front of the vehicle at some later point, when the vehicle had stopped, and noticing that M.B. was pulling G.M. over the centre console between the front seats of the vehicle, while M.B. simultaneously was holding and/or rubbing G.M.’s back.
B.M. recalled G.M. then saying “no” a couple more times before looking forward again to see M.B. pull G.M.’s pants down as G.M. was pulled over the centre console with her head was in M.B.’s lap. B.M. assumed G.M. was engaged in fellatio at that point, although B.M. admittedly could not fully see that happening. While that was happening, B.M. says, M.B. continued to have a hand on the back of G.M.’s head, while his other hand was “slapping her butt”. At that point, B.M. then intervened to tell M.B. not to slap G.M. anymore; an intervention which apparently prompted M.B. to stop his activity with G.M. temporarily, in order to ask C.N. and B.M. to exit the vehicle. Although B.M. indicated in response that she wanted to remain in the vehicle with G.M., both M.B. and C.N. told B.M. to get out of the truck and she did so.
B.M. said that she and C.N. then remained outside the vehicle, standing and waiting nearby for approximately 10 minutes, during which she could not see any light on in the vehicle’s interior or what was happening inside.
When G.M. then opened the passenger side door of the vehicle to spit, B.M. asked M.B. if she and C.N. could get back inside, to which M.B. responded: “Not yet”, or “Just a sec”. M.B. and C.N. finally were permitted to re-enter the vehicle about a minute later, after which it proceeded to the Tim Horton’s restaurant in Parkhill.
iv. During the course of his testimony, M.B.’s description of what happened in that regard included the following assertions:
He said his arm and G.M.’s arm touched while both arms were on the same arm rest during the initial 10 minutes of the drive, and that such touching led to their holding hands without G.M. ever trying to pull her hand away.
As the drive continued, M.B. says, that initial handholding was followed by his putting his hand on G.M.’s lap and inner thigh area, over her clothing, following which G.M. did the same thing to him. At the same time, M.B. says, he noticed by “glancing back” that C.N. and B.M. were doing “similar things” in the rear seat of the vehicle.
M.B. says he then stopped the vehicle, as he felt it would be unsafe to be driving “if things were going to go further”. He says that, during that initial roadside stop, (which began approximately 20 minutes into the drive), he and G.M. were “making out” and kissing, while she was rubbing his penis over his clothes and he was touching her inner thigh over her clothes. He acknowledges that G.M. then said: “We should stop doing this”. M.B says that he stopped in response to that request, and resumed driving.
M.B. said that, once the drive had resumed, he and G.M. nevertheless once again began engaging in further physical activity, which started with resumed handholding, followed by M.B. once again placing his hand in G.M.’s lap, and G.M. once again then doing the same thing to him. He said G.M. then went further, proactively undoing the button of his pants and unzipping his fly. At that point, M.B. said, after they had been driving for another 15-20 minutes after the first stop, he once again pulled the vehicle to a stop “on a backroad”, believing from G.M.’s actions that she had “changed her mind” about engaging in further sexual activity.
M.B. said that, once the vehicle had stopped for the second time, G.M. brought her pants but not her panties down approximately six inches, such that he was able to start “fingering her”, with G.M. whispering: “Two fingers are better than one”. M.B. says he nevertheless did not respond to that comment, apart from ending what he had been doing. After that, M.B. says, G.M. then began “leaning over the console” to perform fellatio on him, after performing some initial masturbation of his penis with her hand; the latter detail being added only during cross-examination. At that point, M.B. said, G.M. also had pulled her own shirt up while bent over the centre console to perform fellatio. He denied having asked her to do that, and further denied masturbating after she had done so. He also denied pulling, yanking, or grabbing G.M. over the console, or using any physical force whatsoever to move G.M.’s head into his lap area. He also denied “slapping her butt”, although he acknowledged in later cross-examination that he did “touch” G.M.’s butt.
M.B. acknowledged that C.N. and B.M. exited the vehicle for a time during that second roadside stop, but said that resulted from C.N. asking M.B. if it would be “helpful for them to get out for a minute”. M.B. said that, once C.N. and B.M. had exited the vehicle, leaving the right passenger door slightly open such that the vehicle’s interior light remained on, G.M. then resumed performing fellatio on M.B. until he climaxed in her mouth, after which G.M. opened her passenger door of the vehicle to “spit it out”. According to M.B., C.N. and B.M. then re-entered the vehicle 30-60 seconds later, (having been outside for approximately 5-10 minutes at that point, without either having previously asked to re-enter), and the vehicle proceeded on to the Tim Horton’s restaurant in Parkhill.
M.B. denied that he and/or C.N. had told B.M. and G.M. that they should “do something cool”. He also denied that he had intentionally taken back roads “to nowhere”, or purposely taken roads that would not lead directly to the Tim Horton’s restaurant in Parkhill, despite the journey taking much longer than the normal 25-30 minute “back road” driving time estimate he provided during the course of his testimony. M.B. further denied that G.M. had ever verbally or physically indicated that she did not want to engage in any of the sexual activity described above, apart from her stated desire to stop doing what she and M.B. had been doing during the vehicle’s first roadside stop. He instead thought G.M. had been agreeable to all that happened; e.g., because she had been holding his in return, kissing him back, and rubbing him.
v. During the course of his testimony, C.N.’s description of what happened in that regard included the following assertions:
He denied that there was any discussion about B.M. and G.M. doing anything “cool” with M.B. and him in the vehicle.
C.N. nevertheless acknowledged that, during the course of the drive, there was physical interaction between himself and B.M. that progressed from his having his arm around her, and her leaning into him, to more intimate sexual activity.
C.N. said that he observed G.M. proactively lean over to M.B.’s side of the truck to begin kissing M.B. while the vehicle was still in motion, which surprised M.B., started the physical interaction between G.M. and M.B., and prompted M.B. to stop the vehicle for the first time on the side of the road. According to C.N., after further activity between M.B. and G.M., leading to M.B.’s pants being undone, (during which C.N. says he did not hear G.M. say “no” or anything else), G.M. then said “No, we should stop”. In response, C.N. said, M.B. agreed to stop, after which M.B. resumed driving.
According to C.N., G.M. nevertheless once again then “leaned over” to kiss and “make out” with M.B., which once again led M.B. to pull the vehicle over to a second roadside stop.
According to C.N., he and B.M. continued to engage in sexual activity during that second roadside stop, but he still was able to see G.M. “leaning over and continuously kissing” M.B., without ever seeing M.B. grab G.M., pull G.M. over the vehicle’s centre console, or use any apparent physical force on G.M. Nor, according to C.N., did he ever hear G.M. voice any objections to what was happening, or see anything that caused him concern. C.N. also that said that B.M. never spoke to M.B. about what was going on between M.B. and G.M., never tried to intervene in that regard, and never asked M.B. to stop what he was doing.
C.N. said that, once continued sexual activity with B.M. had resulted in C.N. ejaculating during that second roadside stop, he and B.M. were “pretty much waiting” in the rear of the vehicle for M.B. and G.M. to complete their sexual activity. M.B. then indicated that he “couldn’t concentrate” and was “having trouble finishing” in the circumstances, leading C.N. to suggest that he and B.M. exit the vehicle for a time to help M.B. “concentrate”. According to C.N., he and B.M. then got out of the vehicle via the doors on the vehicle’s passenger side, without there being any discussion about B.M. possibly staying in the vehicle with G.M., but with the vehicle’s right passenger door then being left partially open such that the vehicle’s interior light remained on. C.N. says that he accordingly was able to see everything going on inside the vehicle through its rear window, while he was standing outside it with B.M. and waiting to re-enter. Indeed, according to C.N., during the approximately 2-3 minutes he and B.M. were standing outside the vehicle, he could see “100 percent” of what was going on inside the vehicle; e.g., observing G.M. “giving oral sex” to M.B., without seeing M.B. apply any force to G.M., and without seeing G.M. pull up her shirt or M.B. masturbating. C.N. said that, after the sexual activity between M.B. and G.M. had ended, he and B.M. re-entered the vehicle, which then proceeded to the Tim Horton’s restaurant in Parkhill.
i. After some food was purchased at the Tim Horton’s restaurant in Parkhill, B.M. and G.M. were returned to the home of J.P., where they were dropped off at the laneway to the property without M.B. and C.N. entering J.P.’s residence. In the course of their testimony, G.M. and B.M. denied kissing M.B. and C.N. respectively when the four parted company, although M.B. and C.N. said, in the course of their testimony, that such goodbye kisses had happened without B.M. or G.M. seeming to be upset.
j. Either immediately upon or shortly after M.B. and G.M. returned to the home of J.P., G.M. in particular nevertheless was noticeably upset and crying, prompting discussion between J.P., B.M. and G.M., after which B.M. and G.M. spent the night at J.P.’s home. Sometime that night, B.M. admittedly also telephoned another friend to discuss what had happened.
k. The following day, (i.e., Monday, January 13, 2020), G.M., J.P, B.M., M.B. and C.N. went to school at their common high school, where rumours were circulating about what had happened over the weekend. That evening, G.M. contacted the police.
l. On Tuesday, January 14, 2020, there was a meeting between M.B., C.N. and the high school’s guidance counsellor. In that regard:
i. When testifying at trial, M.B. said the guidance counsellor called M.B. and C.N. to come see her at the same time, without giving any reason and without ever suggesting a sexual assault, simply to ask if they wanted to talk about an “interaction” that apparently had taken place between M.B. and G.M.; i.e., with M.B. merely thinking the guidance counsellor’s invitation to talk and resulting meeting possibly had been prompted by the guidance counsellor having “heard some rumours”.
ii. In the course of his trial testimony, C.N. said that he and M.B. “went straight to the guidance counsellor” for help when they heard a rumour that G.M. was going to the police to report a sexual assault.
m. Either later that night, (i.e., on Tuesday, January 14, 2020), or on the following morning, M.B. was contacted by the police, and arrangements were made for M.B. to attend voluntarily at the police station on Wednesday, January 15, 2020, at which time he was arrested and charged with sexual assault.
n. Trial of the matter commenced on March 11, 2021, with the Crown indicating its decision to proceed summarily in relation to the charge of sexual assault, in respect of which the appellant entered a plea of “not guilty”. The trial thereafter proceeded with the receipt of testimony from the three witnesses called by the Crown, (i.e., G.M., J.P. and B.M.), and the commencement of testimony from the first witness called by the defence; i.e., the appellant himself.
o. On March 12, 2021, the trial continued with completion of the appellant’s testimony, and testimony from C.N., (the second and last witness called by the defence), followed by closing submissions from counsel. The trial judge then reserved his decision.
p. On April 8, 2021, the trial judge orally delivered lengthy reasons for judgment, finding the appellant guilty of sexual assault.
q. Imposition of sentence followed on June 17, 2021.[^3]
[5] With that general context in mind, I turn next to the relevant law.
General principles
[6] General principles applicable to appeals of this nature, (i.e., appeals based on a trial judge’s alleged uneven scrutiny of evidence led by the Crown and evidence led by the defence), include the following:
a. Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown is an error of law.[^4]
b. However, arguments based on alleged application of such “uneven” or “different” standards of scrutiny of evidence by a trial judge are a notoriously difficult ground of appeal to succeed upon because:
i. credibility findings are the province of the trial judge, and attract significant appellate deference; and
ii. appellate courts justifiably view such arguments with skepticism, seeing them as little more and/or nothing less than a thinly veiled invitation to re-assess the trial judge’s credibility determinations, and to retry the case on an arid, printed record.[^5]
c. For such an “uneven scrutiny” argument to succeed, it is not enough for an appellant to show:
i. the mere fact that the trial judge accepted the evidence of the complainant and rejected that of the appellant in concluding that guilt had been established beyond a reasonable doubt;[^6]
ii. that a different trial judge could have a reached a different credibility assessment;[^7]
iii. that the trial judge failed to say something that he or she could have said in assessing the respective credibility of witnesses or gauging the reliability of evidence;[^8]
iv. that the trial judge failed to expressly set out legal principles relevant to his or her credibility and reliability assessments;[^9] and/or
v. that the trial judge spent more time discussing reasons for believing or disbelieving the evidence of one witness than the time spent doing so in relation to another witness.[^10]
d. For such an “uneven scrutiny” argument to succeed, an 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 defence and the evidence of the Crown; something sufficiently significant to displace the deference due to a trial judge’s credibility and reliability assessments.[^11] Alternative characterizations of what is required, for an “uneven scrutiny” argument to succeed, speak to an appellant’s need to demonstrate the trial judge’s application of a “double standard”, use of “faulty methodology”, or use of “two different measuring sticks”.[^12]
e. Where an appellant succeeds in establishing that the trial judge has applied different standards in assessing evidence of the defence and evidence of the Crown, the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice. In such a case, a new trial is necessary even where the record otherwise may be capable of supporting a conviction, had the evidence been properly assessed.[^13]
[7] As noted above, the notice of appeal filed by the appellant in this case identified uneven scrutiny of defence evidence and Crown evidence as the sole ground of appeal relied upon by the appellant.
[8] I therefore also am mindful that majorities of the Supreme Court of Canada repeatedly have noted that it has yet to rule on whether “uneven scrutiny” of defence and Crown evidence is an independent ground of appeal.[^14]
[9] Moreover, the most recent majority of the Supreme Court of Canada to address the matter has expressed “serious reservations” about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings, (e.g., insofar as it seems focused on methodology and a questionable presumption that testimony of different witnesses necessarily deserves parallel or symmetrical analysis, instead of a proper focus on whether there is reversible error in a trial judge’s credibility findings), while also noting that “uneven scrutiny” arguments easily overlap with other arguments for why a trial judge’s credibility findings are problematic, making it unsurprising that “uneven scrutiny” arguments frequently are “tacked on” to arguments such as insufficiency of reasons, misapprehension of evidence, reversal of the burden of proof, palpable and overriding error, or unreasonable verdict.[^15]
[10] Similar reservations have been expressed by the appellate courts of other provinces and territories.[^16]
[11] For the time being, however, I obviously am bound to follow the general principles outlined above to the extent they have been stated and/or endorsed by the Court of Appeal for Ontario and are not at variance with any non-obiter decisions of the Supreme Court of Canada.
Analysis
[12] In my view, the appellant in this case does not clear the high bar for overturning a conviction on the ground of alleged uneven scrutiny of evidence by the trial judge.
[13] Without limiting the generality of the foregoing, my reasons in that regard include the following:
a. After instructing himself on fundamental criminal law principles, the law relating to the offence of sexual assault, and a self-reminder concerning the principles emphasized in R. v. W.(D.), supra, the trial judge conducted a careful and scrupulous review of the evidence of all five witnesses who testified at trial. Examination of the underlying trial transcript confirms that review was entirely fair and even-handed; e.g., insofar as the trial judge not only highlighted the principal assertions of each witness, but areas in which uncertainties and inconsistencies had been expressed initially and/or exposed in cross-examination, and the explanations (if any) which had been offered in that regard by the witnesses in question.
b. In terms of overall assessment of witness presentation, the trial judge maintained a similar balanced and even-handed approach. Without limiting the generality of the foregoing:
i. While describing the testimony of G.M. and B.M. as “clear and responsive”, given by two young women who were “clearly intelligent and articulate”, and remained “open to being questioned” notwithstanding the challenging nature of the matters being addressed in their testimony, the trial judge generally described the testimony of M.B. and C.N. in similarly positive terms. In particular, both young men were said to have testified in a manner that “was also relatively straightforward”, without either being “argumentative or unduly resistive” during examination or cross-examination, and with both presenting as “capable and possessed of the ability to understand, recall and articulate their evidence”.
ii. Notwithstanding those overall assessments, the trial judge also noted incidental concerns about witness reliability in relation to particular Crown and defence witnesses; e.g., noting that both G.M. and B.M. had been consuming alcohol on the night in question, (with B.M. in particular having conceded that she was feeling the effects of intoxication and “out of it" during the time of her relevant observations), that B.M.’s point of observation in relation to the front seat of the vehicle was restricted to some extent by the tall seat in front of her, and that C.N. occasionally seemed “easily confused” as he “struggled at times to keep up with the flow of questions”, while nevertheless remaining “responsive and engaged”.
c. While noting at one point that assessing the evidence of G.M. required mindfulness of her status as a youthful witness, (including associated issues concerning the manner in which such a witness communicates evidence, as per authorities such as R. v. M.O., 2014 ONCA 503), the trial judge simultaneously observed that such considerations extended to all such youthful witnesses, whether testifying for the Crown or the defence; another important indication of even-handedness.
d. The trial judge was alive to possible frailties in the evidence of the complainant G.M., including numerous inconsistencies highlighted during cross-examination, but addressed those expressly in a reasoned and reasonable manner making it clear that he did not, after careful assessment, regard them as being sufficiently damaging or concerning to raise any reasonable doubt about G.M.’s credibility or reliability in relation to the material aspects of her testimony. Without limiting the generality of the foregoing:
i. In relation to G.M.’s apparently inconsistent indications over time concerning the nature of her relationship with M.B.’s former girlfriend:
The trial judge expressly noted the apparent contradiction between G.M.’s indication to the police that the former girlfriend had been one of G.M.’s “best friends forever” and G.M.’s indication at trial that the former girlfriend was merely an acquaintance.
The trial judge made it clear that he recognized the suggested importance of the apparent contradiction to the defence theory that G.M. had been motivated to fabricate her allegation of sexual assault; e.g., as a means of covering her feelings of remorse, and fear of negative social repercussions, for having engaged in sexual activity with the former boyfriend of her female friend in “somewhat tawdry circumstances”.
In addition to noting the original explanation offered by G.M. for the apparent contradiction, (i.e., that G.M. and M.B.’s former girlfriend had once been close friends, but were no longer so), the trial judge provided two other reasons for his view that the contradiction lacked the significance suggested by defence counsel:
a. G.M. had provided what the trial judge viewed as compelling testimony that she was not concerned about acquiring a reputation for being unchaste or sexually promiscuous. G.M. instead was concerned about being known or portrayed within her small high school and close-knit social community as “that girl who had been sexually assaulted or victimized”, and about the implications of moving forward with a complaint of sexual assault against M.B., having regard to their “enmeshed” circles of friends and acquaintances.
b. In the view of the trial judge, the suggestion of G.M. having a motive to fabricate an allegation of sexual assault after-the-fact, once word of her sexual activity with M.B. had begun circulating within her high school, was rebutted in any event by the evidence of G.M. and B.M., corroborated by the testimony from the “neutral” witness J.P., that G.M. was upset, crying and effectively indicating as soon as she returned to J.P.’s residence, (via repeated statements including indications that she had said “no” to the “blow job”), that she had been sexually assaulted. In the view of the trial judge, that provided “unequivocal evidence of an early, substantial and meaningful disclosure” that stood “strongly in the face of a suggestion of … recent fabrication”.
- In my view, those reasoned findings for regarding the identified inconsistency regarding M.B.’s former girlfriend as unimportant to assessing G.M.’s credibility were available to the trial judge on the evidence before him, are deserving of deference, and should not effectively be relitigated or disturbed on appeal.
ii. In relation to the apparent inconsistency between notes G.M. made before her police interview mentioning that her pants had been pulled part way down, and G.M.’s apparent failure to remember such matters during the course of her testimony at trial, as well as G.M.’s indications of uncertainty as to whether M.B. had “fingered” her, as suggested by defence counsel during cross-examination and by M.B. in his testimony:
The trial judge expressly noted the apparent inconsistency in G.M.’s indications over time as to whether her pants had been pulled down during the events in question. However, he accepted G.M.’s explanation that she had not reviewed those notes prior to testifying, (more than a year after the notes had been made), in order to refresh her memory in that regard. Moreover, the trial judge also noted that the testimony of B.M. provided independent corroboration that G.M.’s pants had not only been pulled down, but had been pulled down by M.B.; i.e., thereby confirming an inculpatory detail regarding M.B.’s conduct that G.M. herself forgot or otherwise neglected to provide. In such circumstances, it was open to the trial judge to find that G.M.’s omission in that regard did not have any significant adverse impact on G.M.’s credibility.
As for G.M.’s indication of inability to remember whether she had been “fingered” by M.B., during the events in question, the trial judge expressly acknowledged that lacking a definite memory about such an intimate event could be problematic in terms of witness reliability. However, the trial judge also noted that the relevant indication of an inability to remember in that regard was “modestly equivocal”; i.e., insofar as it followed three “firm denials” by G.M. in that regard. Moreover, those firm denials also received a measure of corroboration via the testimony of C.N., who claimed to have observed 80 percent of what had transpired between M.B. and G.M. while he was inside the vehicle with them, yet said nothing to indicate that such sexual activity had taken place. Those reasoned findings also were available to the trial judge, based on the evidence before him, and in my view should not be reargued in this context. In particular, I think it inappropriate to dispute the trial judge’s expressed view that G.M. gave “firm” denials prior to her final equivocal indication of uncertainty. The trial judge had the benefit and advantage of seeing and hearing G.M. testify, and his perceptions in that regard are entitled to deference.
iii. In relation to the contradiction between G.M.’s initial indication at trial that M.B. had lifted her top in order to look at her breasts while he masturbated, and her earlier indication to the police that she herself had lifted her top in response to M.B.’s direction that she do so, (i.e., the version of events G.M. eventually adopted at trial), the trial judge not unreasonably found there to be a contradiction in that regard, but one without significance. As emphasized by the trial judge, the relevant substance of G.M.’s testimony in that regard was the same; i.e., that her breasts had been exposed unwillingly, to facilitate M.B.’s masturbation.
iv. In relation to G.M.’s acknowledged failure to mention and/or inability to recall the spilling of the alcoholic drink she had brought to the vehicle, and the possible impact of that on G.M.’s clothing, the trial judge accepted that the particular circumstances surrounding what happened to that drink remained unexplained. However:
The trial judge also provided a reasoned explanation for his view that G.M.’s failure in that regard was insignificant, insofar as it concerned a “relatively minor detail”, “at the periphery” of the relevant underlying events, and one that had no significant impact on his required analysis of the evidence; e.g., insofar as a drink being spilled as G.M.’s torso moved over the centre console of the vehicle was consistent with both the Crown and defence theories of what had happened.
I think it noteworthy that the trial judge adopted a similar and symmetrical approach to certain contradictions between the evidence of M.B. and the evidence of C.N., (e.g., as to as to whether one or both of the vehicle’s windshield wipers were not functioning properly), that also were regarded as peripheral, with no strong bearing on the central issues to be decided. That too underscores the even-handed approach to the matter adopted by the trial judge.
e. The trial judge noted that G.M.’s testimony was credible not only despite its alleged frailties, but also because it received substantial corroboration in large measure via the testimony of B.M. and -- perhaps more importantly - via the testimony of J.P., who was characterized as a neutral witness. In contrast, significant points of M.B.’s testimony were not corroborated by any other witness, including his generally supportive friend C.N., while other important points agreed upon by M.B. and C.N., (e.g., as to G.M. being content or “perfectly fine” when she parted company with M.B., supposedly with a farewell kiss), were directly contradicted by more persuasive neutral testimony from J.P. in that regard.
f. In relation to appellate counsel’s submission that the trial judge effectively and unfairly rejected the testimony of M.B. despite its being ‘entirely plausible and internally consistent”, regardless of its possible inconsistency with certain aspects of C.N.’s testimony:
i. In my view, the submission ignores the reality that the trial judge actually found numerous aspects of M.B.’s testimony to be implausible and/or internally inconsistent, and provided reasoned and reasonable explanations for doing so. For example:
In his review of M.B.’s testimony, the trial judge noted his view that such testimony had been internally inconsistent in relation to whether G.M. had masturbated his penis over or under his clothing, prior to initiating fellatio.
The trial judge expressly found it difficult to reconcile M.B.’s testimony that:
a. he was clearly interested in having an intensive sexual interaction with G.M.; and
b. M.B.’s testimony that he nevertheless said nothing in response to G.M.’s supposed act of encouragement in whispering that he should use two fingers rather than one to masturbate her, and then actually stopped engaging in that activity altogether after G.M. supposedly made that comment.
The trial judge expressly found that M.B.’s assertion that G.M. lifted her own top to expose her breasts, while denying having masturbated while looking at them, “rang hollow”. In particular, the trial judge believed there would be no logical purpose to G.M. supposedly lifting her own top to expose her breasts entirely on her own initiative, while she was leaning over the central console of the vehicle to perform oral sex on M.B., as her chest would have been facing down towards the console and therefore not visible to M.B. in such circumstances.
The trial judge found M.B.’s assertion that he had always been driving from J.P.’s residence towards the Tim Horton’s restaurant in Parkhill, albeit via “the long way”, entirely implausible; i.e., having regard to the route described and the extraordinary length of the journey taken compared to the normal driving time, all of which led to a reasonable inference that M.B. was instead making an intentional trip into a remote area in order to isolate G.M. and B.M., thereby rendering them more vulnerable to sexual advances in respect of which they effectively would have little or no choice but to submit.
The trial judge expressly found it difficult to reconcile M.B.’s assertion that C.N. and B.M. exited the vehicle because M.B. was having “a hard time concentrating” and achieving orgasm. (i.e., while they were watching and waiting for the sexual activity between M.B. and G.M. to finish), with M.B.’s assertion that the vehicle’s interior light nevertheless also was left on while G.M. completed her performance of fellatio, such that C.N. supposedly still could see 100 percent of what was happening inside the vehicle. As sensibly noted by the trial judge: “Presumably, if a couple is seeking a more private and intimate setting to carry on their sexual congress, the last thing they would want is for the door [of their vehicle] to remain open and the interior light to remain on”.
The trial judge also found it implausible, (having regard to other evidence making it clear that rumours were circulating around the parties’ small high school in the days following the events in question), that M.B. was oblivious to G.M.’s allegation of sexual assault at the time of the meeting he and C.N. had with the school guidance counsellor. The trial judge corresponding found M.B.’s efforts to portray that meeting as an entirely non-culpable interaction to be deliberate deception, further undermining M.B.’s credibility.
ii. Even if such internal flaws in M.B.’s testimony had not been present and identified by the trial judge, appellant counsel’s submission also effectively ignores authority confirming that a trier is entitled to reject the evidence of an accused despite the absence of any obvious flaws in it, based on a considered and reasoned acceptance, beyond a reasonable doubt, of the truth of conflicting credible evidence.[^17]
iii. In my view the submission also wrongly suggests that the trial judge was entitled to approach, and fairly should have approached, the evidence of M.B. in isolation; e.g., disregarding not only the conflicting testimony of G.M. and B.M., but also the testimony of C.N. in its entirety once the trial judge apparently had found C.N. to be a relatively poor witness.[^18] As we routinely instruct our juries:
A trier is obliged to consider all evidence in coming to conclusions, and therefore is not permitted to consider, assess, and accept the testimony of one witness, (including the accused), without regard to the testimony of other witnesses. It accordingly is not only appropriate, but required, for a judge to consider the testimony of all witnesses in arriving at overall credibility determinations. In particular, a trier may and should consider whether the testimony of a witness is the same or different from what other witnesses say about the same event or series of events; e.g., to see if the testimony of one witness is corroborated or contradicted by the testimony of one or more other witnesses.
A trier also is permitted to accept some, all, or none of the testimony of any particular witness. While the trial judge therefore may have regarded much of the evidence of C.N. as flawed, that did not prevent its relevance and use in circumstances where it had more circumstantial guarantees of accuracy; e.g., insofar as C.N., despite his apparent desire to testify in a manner that would assist his friend M.B., and his noted ability to make accurate observations, failed to notice and confirm conduct of G.M. described by M.B., (e.g., G.M. proactively lifting her own top or pulling down her own pants), that would have supported suggestions that G.M. had been a willing and eager participant in sexual activity with M.B. on the night in question. Similarly, it was not legal error for the trial judge to regard M.B.’s testimony as undermined, in various ways, by C.N.’s candid and inconsistent indications regarding various matters. For example:
a. Contrary to M.B.’s assertions about how the relevant evening/night began, (i.e., with him supposedly being contacted at home simply to provide C.N. with a ride home), C.N. testified that M.B. had been proactively attending successive social events that evening, following which the two men drove around aimlessly with no particular destination for an extended period, despite the weather and M.B.’s vehicle having one or more malfunctioning windshield wipers, prior to C.N. receiving a telephone call from B.M. requesting transportation. In that regard, the trial judge drew an available and reasonable inference that the subsequent refusal of M.B. and C.N. to proceed in a more direct fashion from J.P.’s residence to the Tim Horton’s restaurant in Parkhill, supposedly owing to concerns regarding safety, was not made in good faith, in turn supporting his ultimate finding that M.B. intentionally had driven G.M. and B.M. into an isolated area for the purpose of making them more vulnerable to sexual advances.
b. As already noted, contrary to M.B.’s assertions that he and C.N. had been invited by the high school’s guidance counsellor to a somewhat benign meeting, ignorant of the meaning’s purpose, C.N. provided a more plausible account, (having regard to the rumours that were circulating at the high school in the days following the events in question), that M.B. and C.N. proactively sought out that meeting because they were very concerned about indications that G.M. was contemplating a report of sexual assault to the police.
g. I think it noteworthy that the trial, judge, while ultimately rejecting the exculpatory version of events put forward by M.B. and C.N., repeatedly made comments indicating that he nevertheless had been mindful of countervailing considerations; something once again demonstrating an ongoing effort by the trial judge to maintain an even-handed approach to the evidence. For example:
i. While noting the existence of various inconsistencies between the testimony of M.B. and C.N., the trial judge also noted and emphasized that their evidence agreed on important points; e.g., their denial of either saying to G.M. and B.M. that they should “do something cool”, and the circumstances in which it was decided that G.M. and B.M. would be driven to the Tim Horton’s restaurant in Strathroy rather than the McDonald’s restaurant in Strathroy.
ii. While noting C.N.’s failure to corroborate M.B.’s assertions that his physical interactions with G.M. had commenced with mutual hand-holding and mutual stroking of inner thigh areas, the trial judge expressly made allowance for the fact that C.N. was in a position of restricted observation, and that such minor touching may have gone unnoticed.
iii. While noting that he generally found it difficult to reconcile C.N.’s professed willingness to give M.B. and G.M. privacy from watching eyes, (to complete their sexual activity), with C.N.’s professed subsequent sustained observation of everything M.B. and G.M. were doing inside the vehicle after C.N. and B.M. had temporarily stepped outside, the trial judge acknowledged that C.N.’s obvious interest in returning to the vehicle as soon as possible, in order to get out of the rain, provided a possible explanation for C.N. therefore watching to see “when the invitation to re-enter the cab might be extended”.
h. Although it was suggested that the trial judge created or reinforced an appearance of treating the parties unequally by indicating during the course of his reasons that he had “done his own map research” via the internet to “gather additional information in a manner that compromised trial fairness”, I disagree. In that regard:
i. Counsel for the appellant effectively focused on the following passage from the reasons of the trial judge:
Although Mr B. testified that his route represented taking “the long way to Parkhill”, in reality it does not. A simple look at a map makes it clear that while the described route from [J.P.’s residence] to Parkhill via Sylvan Road might take a long time, it is not by any description the long way to Parkhill. It is, in fact, entirely out of the way, even taking into account the stated aim of remaining on the “back roads” for safety’s sake. The fact of the matter is that this was an intentional trip into a remote area that had little to do with getting to Parkhill for the purpose of attending the Tim Horton’s [restaurant located there].
[Emphasis added.]
ii. On its face, the emphasized wording from that passage does not make it clear that the trial judge actually looked at any map, (as opposed to speaking figuratively and through reliance on unassisted judicial notice), or that any map the judge may have looked at was one obtained via the internet; e.g., via Google Maps.
iii. However, assuming the trial judge did indeed refer to a Google Map to better understand the location, route and distance information provided during the course of witness testimony, and the testimony of M.B. in particular:
our Court of Appeal has noted, with apparent approval, the proposition that “generally speaking, maps may be relied on by the courts when taking judicial notice, because maps are a readily accessible source of indisputable accuracy”;[^19] and
trial judges in this province repeatedly have used Google Maps to take judicial notice of matters relevant to their determinations.[^20]
iv. Indeed, the primary decision cited and relied upon by counsel in support of this particular argument -- i.e., R. v. Ghaleenovee, 2015 ONSC 1707 -- opens with the following comments in paragraph 1:
Google Maps is incredibly power and useful. Images and maps downloaded from Google Maps are now very common in criminal trials and often accepted as authoritative. In fact, there is nothing wrong with a trial judge using Google Maps or some other indisputably accurate source for the purpose of taking judicial notice of a notorious fact.
[Emphasis added.]
v. Beyond the importance of judges consulting reputable websites generally accepted as containing accurate information, as a means of establishing indisputable facts, a further caveat was emphasized in R. v. Ghaleenovee, supra, at paragraph 21; i.e., that a judge “must not compromise the fairness, integrity and reputation of the trial process”. In that regard, “checking indisputable facts” was contrasted with “conducting an investigation and drawing inferences, especially without giving the parties an opportunity to respond”. However, I do not think the latter characterization and concern apply to this case. Without limiting the generality of the foregoing:
In R. v. Ghaleenovee, supra, the trial judge independently used Google Street View to obtain an image depicting the position and condition of a specific fence located at a particular location, (a state of affairs arguably falling well short of something so notorious as to be indisputable), and then relied on that image to make an adverse credibility finding against the accused without giving the accused any opportunity to address the matter.
In this case, as emphasized by Crown counsel and confirmed by my review of the underlying trial transcript:
a. The driving route taken during the journey from the home of J.P. to the Tim Horton’s restaurant in Parkhill and back again, the reasons for taking that route, and the time taken to complete that journey, were the subject of obvious and repeated scrutiny during the course of witness testimony at trial. The four witnesses who took that journey, (i.e., G.M., B.M., M.B. and C.N.), all were questioned about such matters during examination and cross-examination,[^21] and J.P. similarly was questioned about how long the journey had taken. The fact that the journey took an extended period of time, (i.e., much longer than it should have taken, when compared with the time normally taken to travel between the relevant locations involved), was never really in dispute.
b. During the course of his cross-examination, the appellant M.B. was expressly asked to respond to the Crown’s suggestions that he was “intentionally driving to nowhere” and/or purposely took routes that would not lead right to the Tim Horton’s restaurant in Parkhill, (i.e., the very concern and conclusion later identified by the trial judge in the course of his reasons), and M.B. thereby was given an open opportunity to provide his direct response to such concerns; i.e., that he was travelling “on the back roads”, which “don’t lead you right to Tim Horton’s”, but also was “hitting all sorts of different back roads” along the way.
c. During the course of counsel submissions, the trial judge also expressly and repeatedly indicated that he was focused on and concerned about such matters, and invited counsel submissions in that regard. In particular:
i. During the course of Crown counsel’s submissions, the trial judge interjected to note his concern that there was a “significant amount of time” that went by, during the course of the journey, that was “unexplained and/or inconsistent” having regard to the evidence provided by M.B. and C.N.; i.e., the two defence witnesses.
ii. During the course of receiving reply submissions from defence counsel, the trial judge expressly returned to his concern in that regard, inviting defence counsel to address that concern via the following remarks: “Mr Braiden, in terms of reply, I mentioned in reference to the Crown’s submissions this issue of timing and the evidence from your client and from Mr N. about the timing of the driving. I struggle with that evidence. What’s your view of that evidence?”
iii. In response, defence counsel acknowledged there was “no doubt” that the length of the relevant journey between J.P.’s residence and the Tim Horton’s restaurant took “far longer” than the normal “time frame” required to cover that distance, which was not very long. However, it was suggested that the delay in question was consistent with M.B. driving slowly because of the rain and malfunctioning window wipers, as well as stops taken to permit extended consensual sexual activity.
d. In such circumstances, (i.e., where the relevant distance, route and timing issues were front and centre during questioning and argument, where the accused was given a fair opportunity while testifying to address those concerns directly, where the trial judge signalled his concerns in that regard during the course of submissions and expressly invited submissions from defence counsel addressing those concerns, and where defence counsel exercised that opportunity), I do not think a reasonably minded person present throughout the trial would have considered the judge’s consultation of Google Maps, (a now accepted source of indisputable accuracy), to confirm and easily depict, in relation to each other, the locations, routes and distances already described at length in witness testimony, as something that compromised the fairness, integrity and reputation of the trial process in relation to this matter.
e. In this case, the trial judge specifically considered and specifically rejected defence evidence and submissions that the extended and indirect driving undertaken by M.B. was consistent with prevailing conditions and stops for consensual sexual activity, and found instead that M.B. intentionally engaged in such driving to place G.M. and B.M., two young girls, in a situation of isolated vulnerability; e.g., a situation where G.M. in particular was deprived of any effective choice as to whether she would engage in consensual activity with M.B., found herself faced with the reality of having to “bend to Mr. B’s will, irrespective of her lack of consent”, and “did what she believed she had to do, not what she wanted to do”. In my view, that too was a finding reasonably open to the trial judge, and it should not be disturbed.
[14] I see no basis to conclude that the trial judge applied different standards of scrutiny to the evidence of the witnesses, or to interfere with the trial judge’s findings of credibility and reliability and his assessment of the evidence.
Conclusion
[15] For the reasons outlined above, the appeal is dismissed.
Justice I.F. Leach
Date: November 7, 2023
[^1]: Having regard to s.110(1) of the Youth Criminal Justice Act, S.C. 2002, c.1, (“the YCJA”), and publication bans made herein pursuant to s.111(1) of the YCJA and s.486.4(1) of the Criminal Code, R.S.C. 1985, c.C-46, (“the Code”), the appellant and underlying witnesses herein have been identified only by initials.
[^2]: In her testimony, G.M. estimated that the duration of the driving journey that morning was 1½ to 2 hours. J.P. estimated that B.M. and G.M. were gone from her residence for approximately 1½ to 2 hours. B.M. estimated that the journey lasted approximately 30-40 minutes. M.B. agreed in cross-examination that the overall trip lasted somewhere in the region of 1½ hours. C.N. similarly agreed during cross-examination that the entire journey had lasted approximately 1½ hours.
[^3]: The appellant was sentenced to two years of probation, with terms and conditions that included figurative “house arrest” for the first 60 days and a strict curfew for the next 90 days thereafter, together with a requirement that the appellant perform 75 hours of community service. No application was brought to stay the probation order pending determination of this appeal, and no appeal was pursued in relation to the sentence imposed by the trial judge. As noted above, the appeal herein relates solely to the appellant’s summary conviction in relation to the underlying charge of sexual assault.
[^4]: See R. v. Owen (2001), 2001 3367 (ON CA), 150 O.A.C. 378, at paragraph 3; R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at paragraphs 13 and 33; R. v. H.C., 2009 ONCA 56, at paragraph 62; and R. v. Phan, 2013 ONCA 787, [2013] O.J. No. 5894 (C.A.), at paragraph 30.
[^5]: See R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont.C.A.), at paragraph 59; R. v. Aird, 2013 ONCA 447, at paragraph 39; R. v. D.T., 2014 ONCA 44, at paragraphs 71-73; R. v. George, 2016 ONCA 464, at paragraph 35; R. v. Chanmany, 2016 ONCA 576, [2016] O.J. No. 3859 (C.A.), at paragraph 26; R. v. C.A.M., 2017 MBCA 70, at paragraph 54; R. v. Radcliffe, 2017 ONCA 176, at paragraph 13, leave to appeal refused [2017] S.C.C.A. No. 274; R. v. Kiss, 2018 ONCA 184, at paragraph 83; R. v. Wanihadie, 2019 ABCA 401, at paragraph 34; R. v. K.P., 2019 NLCA 37, at paragraphs 25-26; R. v. J.M.S., 2020 NSCA 71, at paragraphs 19-20; R. v. Ukumu, 2021 ONCA 91, at paragraph 11; and R. v. G.F., 2021 SCC 20, at paragraph 99. More generally, the Supreme Court of Canada repeatedly has emphasized that credibility determinations by a trial judge attract a high degree of deference, and that deficiencies in a trial judge’s credibility analysis, set forth in sufficiently articulated reasons, will rarely merit intervention on appeal. See R. v. Dinardo, 2008 SCC 24, at paragraph 26; and R. v. Vuradin, 2013 SCC 38, at paragraph 11.
[^6]: See R. v. Radcliffe, supra, at paragraph 28.
[^7]: See R. v. Howe, supra, at paragraph 59; R. v. Radcliffe, supra, at paragraph 24; R. v. Chanmany, supra, at paragraph 27; and R. v. G.F., supra, at paragraph 99. The Supreme Court of Canada and our Court of Appeal have emphasized that, while appellate courts have jurisdiction to review findings of fact and credibility, they generally are not to retry cases and substitute their opinions regarding credibility of witnesses and/or the force to be given to fact-based arguments for the making of credibility assessments; i.e., to engage in de novo evaluation of factual arguments that were raised at trial, and considered and rejected by the trial judge in his or her reasons. See R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122; R. v. Beaudry, [2007] 1 S.C.R.; and R. v. Drabinsky, 2011 ONCA 582, at paragraphs 39-40.
[^8]: See R. v. Howe, supra, at paragraph 59; R. v. Radcliffe, supra, at paragraph 24; R. v. Chanmany, supra, at paragraph 27; and R. v. G.F., supra, at paragraph 99. In relation to the articulation of reasons for resolving controversies regarding credibility and reliability:
• The Supreme Court of Canada has emphasized the following in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paragraph 20: “Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this court decided, most recently in L.(H.), that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.”
• Similar recognition of the challenges inherent in articulating reasons for credibility determinations were expressed in R. v. R.E.M., 2008 SCC 51, at paragraph 49: “While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”
• For related reasons, the Supreme Court of Canada repeatedly has lamented appellate court decisions that scrutinize the text of trial reasons in a search for error, (particularly in sexual assault cases), and overturn safe convictions after fair trials not on the basis of legal error but on the basis of “parsing imperfect or summary expression” on the part of the trial judge. See R. v. G.F., supra, at paragraph 76.
• Our Court of Appeal similarly has emphasized the following, in R. v. Wadforth, 2009 ONCA 716, at paragraph 66: “Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events.”
[^9]: See R. v. Howe, supra, at paragraph 59; R. v. Radcliffe, supra, at paragraph 24; R. v. Chanmany, supra, at paragraph 27; and R. v. G.F., supra, at paragraph 99. Credibility findings must be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. See R. v. G.F., supra, at paragraph 82.
[^10]: See R. v. Keresztes, 2014 ABCA 281, at paragraph 4; and R. v. D.G., 2021 ONCA 900, at paragraph 41. In that regard:
• Such variations are not emblematic of uneven scrutiny but often flow from the nature of the evidence. Moreover, it must be remembered that a trial judge is not required to discuss all of the evidence, describe every consideration leading to a finding of credibility, comment specifically on every inconsistency in the course of his or her analysis, reconcile every frailty in the evidence, or spell out every reasonable inference, so long as the provided reasons, read in context, reasonably show why the trial judge arrived at his or her decision. Appellate courts must guard against sifting through the record and substituting their own analysis of the evidence for that of the trial judge simply because the reasons provided do not comply with their idea of ideal reasons. See R. v. R.E.M., 2008 SCC 51, at paragraphs 11, 55, 56 and 64-68; R. v. Vuradin, supra, at paragraph 15; and R. v. Kishawyinew, 2019 SKCA 127, affirmed 2020 SCC 34.
• It also has been noted that judges who are mindful of the Supreme Court of Canada’s decision in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, emphasizing the importance of focusing at all times on whether the evidence establishes guilt beyond a reasonable doubt and the various ways in which reasonable doubt may be established, may very well dedicate a greater portion of their reasons to analysis of defence evidence -- and evidence of the accused in particular -- to demonstrate their attention to what has been described as “the second step” of R. v. W.(D.), supra; i.e., a consideration of whether they were left with reasonable doubt by that defence evidence. See R. v. Bowers, 2022 ABCA 149, at paragraph 44.
[^11]: See R. v. Phan, supra, at paragraph 34; R. v. Howe, supra, at paragraph 59; R. v. Radcliffe, supra, at paragraph 25; R. v. Gravesande, 2015 ONCA 774; R. v. Rhayel, 2015 ONCA 377, at paragraph 98; R. v. Chanmany, supra, at paragraph 28; R. v. Wanihadie, supra, at paragraph 36; and R. v. G.F., supra, at paragraph 99.
[^12]: See Stevens c. R., 2019 QCCA 785, at paragraphs 130-131; R. v. Paulos, 2018 ABCA 433, at paragraph 17; R. v. Gilbert, 2015 ONCA 927, at paragraph 41; and R. v. Wanihadie, supra, at paragraph 36.
[^13]: See R. v. T.(T.), 2009 ONCA 613, at paragraph 74; and R. v. Kiss, supra, at paragraphs 85-86 and 108-110.
[^14]: See R. v. Mehari, 2020 SCC 40, at paragraph 1; and R. v. G.F., supra, at paragraph 99.
[^15]: See R. v. G.F., supra, at paragraphs 100-101. In the latter paragraph, Justice Karakatsanis indicated, on behalf of the majority in that case, that she would refrain from commenting further “on whether uneven scrutiny is a helpful or independent ground of appeal” until the Supreme Court of Canada was in receipt of “full submissions” addressing the matter.
[^16]: See R. v. Bowers, supra, at paragraphs 33-47, and the other decisions of the Alberta Court of Appeal cited therein; R. v. M.G.S., 2021 SKCA 1, at paragraphs 52-61; and R. v. Tsetta, 2021 NWTCA 6, at paragraph 31.
[^17]: See R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at paragraph 53.
[^18]: The trial judge found that the testimony of C.N. “was, for the most part, imbued with an obvious bias towards his friend”, strongly contradicted by the testimony of G.M. and B.M., and contradicted “in material and important ways by the testimony of M.B.”
[^19]: See R. v. Calvert, 2011 ONCA 379, at paragraph 8. In that case, our Court of Appeal dismissed an appeal based on the trial judge’s use of Google Maps to ascertain the distance between two points. Earlier appellate authority to the same effect may be found in R. v. Gregory, 2009 BCCA 26, at paragraph 21, wherein a trial judge’s indication that he had examined a city map, to determine the distance between two points, was not considered reversible error.
[^20]: See, for example: R. v. Robinson, 2010 ONCJ 576 (O.C.J.), at paragraphs 23-30; Yates v. Fedirchuk, 2011 ONSC 45549 (S.C.J.), at paragraphs 36-37; and R. v. Hill, [2013] O.J. No. 4718 (S.C.J.).
[^21]: Indeed, when C.N. was being cross-examined about the time it normally should have taken to drive between J.P.’s residence and the Tim Horton’s restaurant in Parkhill, he was expressly asked to indicate whether he agreed or disagreed with the normal travelling time suggested by Google Maps.