COURT FILE NO.: CR 22-026-00AP
DATE: 2023-12-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
Terry McCaffrey
Appellant
Peter Scrutton, counsel for the Respondent
Peter Thorning, counsel for the Appellant
HEARD virtually at Gore Bay: October 30, 2023
DECISION ON SUMMARY CONVICTION APPEAL
A.D. KURKE, J.
Overview
[1] The appellant appeals against his conviction by Justice E. Allen on April 25, 2022, for sexual assault, in the Ontario Court of Justice in Gore Bay after a four-day trial. The appellant appeals only against the conviction and not the sentence imposed.
[2] The appellant asserts legal errors by the trial judge, in that:
a. the trial judge improperly rejected the evidence tendered by witness Erich Speckin relating to document sequencing based on the intersection of lines in a police officer’s notebook.
b. the trial judge erred in his W.(D.) analysis and misapprehended key evidence in rejecting the appellant’s evidence.
[3] For the reasons that follow, the appeal is dismissed. In the circumstances of this case, the judge was entitled to reject the evidence of Mr. Speckin on the basis that it was not reliable and that it did not raise a doubt. Moreover, the trial judge instructed himself properly with respect to his W.(D.) analysis, and gave cogent reasons for rejecting the evidence of the accused.
Facts
The complainant’s evidence
[4] The events in this case took place March 7, 2019 at the police station in Wiikwemkoong. The complainant had been with the Wiikwemkoong Tribal Police Service (“WTPS”) for 30 years and was a detective sergeant in the crime unit from 2007 to 2019. Her partner there was Sgt. Darryl Mandamin. The appellant was the chief of police.
[5] The complainant’s son had died suddenly in 2018, and the complainant took a six-month bereavement leave, returning to active duties February 21, 2019. The appellant and a WTPS staff sergeant met with her briefly that day to talk about her return to work. The following day, the appellant met with the complainant and Sgt. Mandamin in the crime unit office and advised them that they had met their “shelf life” and were going to be re-assigned to road duty; Mandamin was to move in April 2019, and the complainant in January 2020.
[6] The complainant denied being upset about the upcoming reassignment. She testified that she was fine with it, given positive effects it would have on her family life. But she did not agree with the appellant’s plan to outsource major crime investigation to the O.P.P. She spoke briefly with the appellant about it on February 25, 2019. On March 1, 2019, the complainant wrote the appellant a letter that she left at his office. In it, she wrote that she did not feel that she should continue in the crime unit, as she did not have the necessary interest and motivation to remain there. She requested to move to the front line right away.
[7] The complainant testified that on March 7, 2019 she was alone in the crime unit. The appellant entered shortly before 5:00 p.m. This was the first time that the complainant had spoken with the appellant since she left him her letter. The appellant seemed like himself and told her that he had received the letter, and asked if she had anything else that she would like to add. She said she did not.
[8] When the appellant told the complainant that he was sorry about the death of her son the complainant began to cry. He put his hands on her shoulders and asked if there was anything that he could do to help and told her that she could see him or call him any time. He then moved his right hand onto the complainant’s left breast. She froze, moved his hand off her breast, said “no”, and walked around to sit at her desk and grab her cell phone. The complainant felt that the appellant was taking advantage of her loss of her son. The appellant began to discuss other things relating to policing and the jurisdiction. Neither of them spoke about what had just happened.
[9] The complainant later that night at home made notes in her police notebook about what had happened with the appellant. The notes for March 7 begin on page 109 of the notebook. The complainant set out the beginning of her contact with the appellant on page 110 and indicated on that page “see back”. She then described the assault at the back of her notebook on pages 143 and 144. She put the description of the assault at the back of the notebook out of concern that someone, including the appellant, might access the notebook and see those notes. The notebook was the property of the WTPS. The next day, her notes for March 8 began on page 111. The complainant continued with notes in her notebook from there.
[10] The complainant kept her notebook in her locker at work. When the complainant finished her crime unit duties on April 3, 2019, she had notes extending up onto page 128. She used long slash marks to cross out the remaining empty pages in her notebook – pages 129 to 142 – because she was about to start a new book on the commencement of her new road duties.
[11] The complainant continued working and avoided being alone with the appellant. Once on the front line from April 3, 2019, the complainant was rarely in the office. In February 2020 the complainant was directed to speak with an investigator hired by the WTPS Board to investigate another officer’s October 2019 workplace complaint about the appellant. That complaint described the appellant as tyrannical and claimed that he had created a “toxic work environment.”
[12] During her own interview, the complainant told the investigator about a time that the appellant lost his temper at a supervisors’ meeting in 2019 for which he later apologized. She explained in her testimony that she had not disclosed the sexual assault during this interview because she was not ready to deal with it and was still focussed on the trauma from the loss of her son. The workplace complaint against the appellant was dismissed August 5, 2020. On September 15, 2020 the complainant contacted the O.P.P. and disclosed the assault. The complainant explained that at that point in time she felt ready to do so.
[13] In cross-examination it was suggested that the complainant was upset about the reassignment out of the crime unit, and that she would miss having use of a WTPS vehicle. The complainant denied this. She acknowledged that she had not appreciated how the appellant had spoken to her about administrative matters and felt “blindsided” and insulted by what she perceived as an order rather than a discussion about going to road duties. However, she respected the appellant’s authority as chief. She took part in the workplace investigation because she had been told to do so. The complainant denied that her notes of the sexual assault were written after April 3, 2019, or that she had written them in September 2020 to fortify her complaint to the O.P.P about the sexual assault.
The appellant’s evidence
[14] In his evidence, the appellant denied having any physical contact with the complainant after her return to work. He vaguely recalled the meeting with the complainant and the staff sergeant after the complainant’s return to work, and the meeting the following day. He expected this to be a difficult conversation because the detectives cared about their work. He thought that the complainant and Sgt. Mandamin were resistant to the proposed changes, but could not explain what gave him that impression, other than their body language and facial expressions. He recalled telling the officers that their role had a “shelf life”.
[15] The appellant remembered receiving the complainant’s letter but did not recall when. He claimed not to specifically remember speaking to her after receiving it, or on March 7, 2019. He eventually acknowledged that this would have been something that he would have had to deal with, and would have discussed with her, potentially in private. Finally, he said that he had a “vague recollection” of speaking with the complainant about the letter but could not remember any details of the conversation, or whether it was in an open area or a closed office.
[16] The appellant conceded that he might have met with the complainant alone in the crime unit office on the afternoon of March 7, but could not remember doing so. However, he denied that he would have brought up her son. He denied putting his hands on the complainant’s shoulders or breast. He denied that he would have offered the complainant condolences on March 7, as he believed that he had already done so at one of their meetings in February. The appellant stated that March 7, 2019 was just an ordinary workday for him, and he would clearly recall the incident with the complainant if it had happened.
The evidence of Erich Speckin
[17] In his evidence, Erich Speckin (“Speckin”) explained that it was sometimes possible to identify an impression or indentation on one side of paper caused by a pen pressing down and creating a bump or hill on the reverse side of the paper. Someone afterwards writing on that other side could flatten the hill at the point of intersection with it. Such intersections are what permit the sequencing of writing. If a pen stroke on one side “cuts through a raised portion … on side two, that would mean that side two was written first.”
[18] The ability to make such determinations depends on many factors, some of which include the writing pressure used to create an impression, the thickness of the paper, the writing instrument, the hardness of the writing surface, line intersections on both sides of the paper, lighting, whether a monocular or stereomicroscope is used, and “many, many more” factors, which Speckin did not account for or elaborate on in his analysis or opinion. Speckin focused on few factors: the number of intersections that occurred, and how many times one could see the intersections. Moreover, much of what the witness claimed he had observed was unable to be captured visually on photographs.
[19] Speckin’s opinion was that the complainant had written her description of the alleged sexual assault on pages 143 and 144 of her notebook after the entries on pages 127 and 128, which contained notes from April 3, 2019. This would tell against the complainant’s claim that she had written those notes on March 7, 2019.
[20] However, Speckin opined that the word “outstanding” on page 111 of the notebook (from a March 11 entry) had been written before the “see back” entry on page 110. This opinion was limited to part of the word “outstanding”. Speckin spoke of the “limitations” of his opinion because of “limited areas of intersection”. Notwithstanding his evidence that it was important to look at both sides of the paper being examined, Speckin took a photo of page 111 “outstanding” but not of page 110 on the other side, or of other writings on those two pages. Moreover, Speckin agreed that the intersection he claimed was only visible to him through his stereomicroscope, and not on the photograph.
[21] Speckin thought that the writing on page 128 (some notes before a slash mark) and page 129 (just a slash mark) were written in the normal sequence, without any explanation for his belief. He opined that with respect to a slash mark on page 142 and the writing made by the complainant on page 143 about the assault, that the writing on page 143 was written after the slash mark because of convexities he claimed to see on page 142. There was no photo of page 143; Speckin explained that while he could observe the writing on page 143 to cut through the slash mark on page 142, he was unable to document his observation in a photograph.
[22] Speckin used his own method of expressing certainty in his opinions, without explaining the parameters of the terms he was using:
a. He testified to using a “nine-point scale” to express degrees of certainty, but he did not explain the scale or correlate it to relevant opinions. At the low end of the scale would lie “inconclusive”;
b. he opined that in his view, pages 128 and 129 of the memo book were “probably” written in the normal sequence;
c. he described being “as certain as I can be” that page 143 was written after the slash mark on page 142;
d. he stated that “see back” on page 110 was “probably” written after the word “outstanding” on page 111. He wouldn’t say “definitively” because of the limited areas of intersection, “so I’d be a little more cautious”.
[23] The trial judge provided Reasons for Judgment on April 25, 2022. He did not accept the evidence of Mr. Speckin or of the appellant. He was satisfied beyond a reasonable doubt on the evidence of the complainant and found the appellant guilty as charged.
Issue 1: Did the trial judge err in rejecting the evidence of Mr. Speckin?
[24] The appellant argues that the trial judge erred in rejecting Speckin’s evidence on the basis that it was “novel”, although the Crown had conceded that the science was not novel. The appellant submits that by incorrectly defining Speckin’s expertise in this way, the trial judge improperly subjected his opinions to the test for novel science and refused to admit the evidence.
[25] This ground of appeal cannot succeed. In order to understand how the evidence was dealt with at trial, it is necessary to consider how that evidence came before the court, the positions of the parties and the treatment of the evidence by the parties, and the trial judge’s Reasons.
The tendering of the Speckin evidence
[26] The defence served notice of its application to have Speckin qualified as an expert to provide opinion evidence on “the dating and sequence of ink entries in a police memo book.” In materials filed in advance of trial, the Crown opposed the admissibility of the Speckin evidence on the basis that Speckin was not qualified to give this opinion, that the science was novel and not sufficiently reliable, and that it was conclusory and lacked probative value in that Speckin did not explain his testing or how he came to his opinions. There were some Canadian and U.S. authorities that found the “science” of “ink dating” to be unreliable. Although Mr. Speckin’s evidence had been accepted in prior cases, the Crown drew the court’s attention to cases in which Speckin’s evidence had been rejected, including a U.S. authority which concluded that it “must close the gate to Mr. Speckin’s proposed expert testimony, because it is not the product of reliable principles and methods.”
[27] The defence advised the court that “[i]t’s not going to be so much a contest of the admissibility of the evidence. The evidence is either factual evidence or it’s lay opinion,” and the Crown was “just contesting its reliability and accuracy”. The Crown understood that Speckin would testify about what he observed the ink to look like in the memo book (which the Crown considered to be admissible fact evidence) and would offer pictures that he created. The Crown did not agree that Speckin could offer any opinion about “sequencing” based on his observations and promised argument on the grounds of reliability and relevance. However, the Crown retreated from its position that the science involved was novel but did maintain that “I don’t believe it’s ever been accepted in a Canadian court” in criminal proceedings.
[28] Defence and Crown then agreed that there would be no admissibility voir dire. It was proposed to the court by the defence simply to lead Speckin’s evidence and the Crown would then cross-examine him about his methodology, his conclusions, and his qualifications. In submissions, the Crown would argue that Mr. Speckin’s evidence or opinion ought not to be accepted, and the defence would argue that his evidence ought to be accepted.
Counsels’ submissions
[29] In final submissions, defence comments on Speckin’s evidence were very brief. Defence counsel did not address the reliability of Speckin’s opinions. Rather, he argued that if Speckin’s evidence was accepted, then the complainant made her notes about the assault sometime after making the slash marks, and not on March 7, as she had claimed. Likewise, the defence submitted that the complainant had made her comment “see back” on page 110 after the word “outstanding” on the following page. The trial judge expressed concern that Speckin’s opinion about pages 110 and 111 “was not answered with certainty,” but then acknowledged that Speckin offered “some evidence,” and “I’m concerned about whether there’s a doubt or not.”
[30] The Crown argued Speckin’s qualifications. During the Crown’s final submissions, the trial judge acknowledged that Speckin “obviously knows more about these things than we do,” and his evidence had been accepted by other people. The trial judge indicated that “how much weight” he attaches to the opinion “is another issue, but it’s an area I don’t understand, myself.” The trial judge told the Crown that:
“…for the sake of analyzing this case, I’m going to take his – I’m going to look at what he says and examine what he says in the context of this case. I’m not going to dismiss it out of hand because I don’t think he has the qualifications.”
[31] Thereafter, the Crown focused instead on the weight to be given the evidence. The Crown argued that Speckin’s evidence did not permit the judge independently to examine the results. Photographs were grainy, unclear, did not show different angles, were of parts of pages or were only of one side of a page. In the Crown’s submissions, the witness attempted to substitute his opinion for that of the trier of fact and did not adequately share the data upon which his opinions relied. In reply, the defence argued extensively against the Crown’s submissions that the evidence of Speckin was unreliable and not credible (transcript of March 17, 2019, page 145, line 13 ff.).
The trial judge’s Reasons
[32] In his Reasons, the trial judge briefly summarized Speckin’s evidence and its import:
The Defence tendered Mr. Speckin as an expert on document sequencing. He purported to analyze the notebook with a view to establishing the order in which certain pen strokes hit the paper. He thought it was probable that the referral to the back of the notebook was made after the entry on the other side of that page, not before as [the complainant] testified. He was also certain, as he could be, that the entries in the back of the notebook were made after the slash mark on the preceding page, which is to say after April the 3rd, 2019, not on March 7th, 2019.
[33] The trial judge did not accept the evidence of Speckin, and explained himself as follows:
The witness tendered as an expert by the Defence, Mr. Speckin, purported to say when the various writings in [the complainant’s] notebook were made, relative to each other. While he has been qualified in other jurisdictions, the science is novel at least to me. It was not apparent to me how the analysis worked and I was left with many unexplored issues about other factors which might have affected the analysis, such as construction of paper and strength and speed of different strokes.
More to the point, the witness regarded one of his findings as probable and the other as, as certain as he could be. Both of these are less than a hundred percent, how much less I don’t know. Also, I have no idea what his error rate is, but if his certainty is less than a hundred per cent his error rate must be greater than zero.
I must also consider the fact that whenever the unused pages were given scratch marks, the last regular page for notes was not crossed out. I must also consider the evidence of the complainant on this point.
I do not accept the evidence of Mr. Speckin. I find the science novel and its reliability is not established.
In addition to my reservations about the expertise, I also have the evidence that whenever the used pages were scratched out, the final page used for notes was not. One explanation for that is that the last page already had Sergeant Trudeau’s account of the assault on it.
Analysis
[34] The appellant submits that the trial judge’s Reasons betray his fundamental misunderstanding of the fact that the Crown had conceded that the science in issue was not novel. On the appellant’s argument, the trial judge unfairly and unnecessarily subjected the evidence of Mr. Speckin to the admissibility requirements for “novel science” as set out in R. v. J.-L.J., 2000 SCC 51.
[35] Opinion evidence is subject to an exclusionary rule and is not admissible unless judges acting as “gatekeepers” screen out evidence “whose value does not justify the risk of confusion, time and expense that may result from its admission”: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 16. The gatekeeping function operates in two threshold stages. The first involves an assessment of relevance, necessity, absence of an exclusionary rule, a properly qualified expert, and, in the case of “novel science”, the reliability of the underlying science for that purpose. At the second threshold stage, the judge must balance the potential risks and benefits of admitting the evidence: White Burgess, at paras. 23-24.
[36] No gatekeeping was performed in this case. Instead, defence and Crown agreed that the defence would simply lead the Speckin evidence, the Crown would cross-examine, and the trial judge would determine what weight to apply to the evidence. This fundamentally flawed procedure, certainly connived in by the defence, led to a very broad analysis of the Speckin evidence by the trial judge, but an analysis of which the defence was at least put on notice, and which the defence had indeed proposed to the trial judge.
[37] In other words, the court, on agreement of counsel, had necessarily admitted the Speckin evidence. Any error by failing to perform its gatekeeping role in this case must have enured to the benefit of the accused, because the Speckin evidence at least made it before the trier of fact. What was left was a matter of weight. And the trial judge did not find the Speckin evidence to be weighty enough, so it was not accepted by the trial judge qua trier of fact. The decision in J.-L.J remains instructive, even though in that case the trial judge had excluded expert evidence in exercising the gatekeeping function. At para. 59 of that decision, the Supreme Court of Canada offered the reminder, drawn from R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, that: “[b]efore any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist”.
[38] The trial judge explained that he was unable to accord weight to the Speckin evidence because the evidence had not adequately explained how it worked so that he could form his own independent conclusion on the evidence. That is, the trial judge could not find that the facts on which Speckin had based his opinions existed. How the analysis worked, factors that were left unexplored by the expert, the level of certainty or uncertainty offered by the expert when his facts could not be verified by the judge’s own examination, and the error rate in his analysis were problems in the evidence.
[39] If the trial judge used a term of art to express his own lack of familiarity with the science behind Speckin’s evidence and described areas of failures that he perceived in that evidence, he “enjoyed the inestimable advantage” of seeing and hearing Speckin’s evidence and is owed deference by this court: R. v. Wadforth, 2009 ONCA 716, at para. 66. The burden remained on the defence in this case to tender evidence to prove the facts underlying Speckin’s opinions: R. v. Macklin, 2000 ABCA 293, at para. 29; leave ref’d 299 A.R. 173n. The trial judge – the trier of fact – found that the defence had failed to prove those facts. That was his right, and he was entitled to reject the opinion based on facts that he found to be unreliable.
[40] The various factors listed by the trial judge caused him to distrust the reliability of Speckin’s evidence. More to the point in the trial judge’s view was the fact that the complainant had stroked through unused pages in her notebook on a date prior to the occasion when the defence proposed she had fabricated her notes about her assault by the appellant. But the complainant had not stroked through the pages on which those notes were written at the back of the notebook. On the theory proposed by the defence and advanced by Speckin’s evidence, this fact defied explanation.
[41] The appellant also complains that the trial judge applied a unique criterion to the assessment of novel science, in stating that “the science is novel at least to me.” In fact, this statement makes clear that what the trial judge meant by this phrase was that he was not subjecting this evidence to any rigorous test of admissibility as “novel science” (for the evidence was already admitted), but rather, that he, as trier of fact, was looking for signposts to guide him towards the ability to trust the sequencing evidence offered by Speckin. As with any trier of fact and any expert evidence, the party calling an opinion witness has the duty of familiarizing the trier of fact with the area of expertise under investigation.
[42] Finally, the appellant submits that the trial judge, by latching on to the notion of this evidence as “novel”, contrary to the agreement of Crown and defence, unfairly deprived the defence of an opportunity to make submissions on the point. This submission ignores the defence reply submissions that did support the reliability of Speckin’s evidence after the Crown had made extensive attacks on it. The appellant had been on notice that the Crown would attack the reliability of the Speckin evidence before Speckin even testified and can not now complain that the trial judge embarked on an unexpected course, or that he was caught unawares or had no opportunity to address the issue.
Issue 2: Did the trial judge err in his W.(D.) analysis and misapprehend the appellant’s evidence?
[43] The appellant submits that the trial judge erred in his application of the W.(D.) test while conceding that he stated it properly in his Reasons. In particular, the appellant argues that the trial judge’s reasons for rejecting the evidence of the appellant were merely conclusory, that the trial judge misapprehended the appellant’s evidence, and that the trial judge erred in his application of the second and third branches of the W.(D.) test, with respect to whether he was left in doubt by the appellant’s evidence or the evidence as a whole.
[44] In my view, the trial judge committed no such errors.
The W.(D.) test and the trial judge’s recitation of the test
[45] The test is set out in the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758:
… In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[46] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
[47] The law requires that a trier of fact recognize that verdicts are to be based on the whole of the evidence, and if there is a doubt about guilt, an acquittal must follow: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at para. 5. The trial judge set out the correct test for his analysis:
Triers of cases involving credibility are required to use a three-step process which is commonly referred to as W.D. for the case in which it was mandated. The first step is to ask if we believe the accused. This is not to suggest that an accused person must persuade the court of the truth of what he says, but if he does he must be acquitted. Likewise, if the evidence called on his behalf leaves the court in a state of reasonable doubt, he must be acquitted. Finally, if the second test is not met, the evidence called by the Crown must prove the guilt of the accused beyond a reasonable doubt or he must be acquitted.
None of these tests take place in a vacuum. Each step involves looking at all the evidence in the case.
Analysis
[48] The appellant’s main ground alleging error in the W.(D.) context relates to the trial judge’s rejection of the appellant’s evidence for, among other reasons, the appellant’s claimed lack of memory about the March 7, 2019 meeting with the complainant as insignificant to him. The appellant submits that the trial judge used illogical reasoning to reject the testimony of the appellant, in that he did not believe the appellant’s claim not to remember his meeting on March 7 with the complainant.
[49] The appellant’s focus is on the date of that meeting. The appellant in his factum points to several dates around March 7, 2019 that could be said to be more significant in the context of the complainant’s transfer to the front line, such as February 22, 2019, the date the personnel re-assignment was announced, or April 2019, when the complainant returned to the front line. With respect, that submission fundamentally misunderstands the focus of the trial judge, which was on the unlikelihood of the appellant forgetting the meeting between complainant and appellant, and not the date of the meeting. In his Reasons, the trial judge set out the issue in the following terms:
I do not believe [the appellant]. His purported lack of memory, his non-committal responses, and his gradual concessions about March the 7th, 2019 as far as they went do not inspire confidence. In particular, his purported lack of memory about the March 7th meeting has to be seen not in the context of just another day in the office but in the context of a major personnel re-assignment a year ahead of his intention.
[50] The trial judge went on to explain how such a personnel move would have a significant effect on a small force like the WTPS, and the effects on administrative functions in the police service. The trial judge reasonably concluded that the appellant should have been able to recall the circumstances of a staffing change “of this magnitude” that would now happen well prior to its planned occurrence. The trial judge misapprehended nothing here; his focus was on the meeting, and not on the date of the meeting. No evidence in the record contradicts the trial judge’s inference about the significance of the March 7 meeting, and his finding coordinates well with other evidence that he relied upon: cf. R. v. Rodrigues, 2023 ONCA 772, at para. 1.
[51] The appellant also argues, relying on R. v. Smith, 2020 ONCA 782, at paras. 21-22, that the trial judge’s list of reasons, as set out above, for rejecting the appellant’s evidence is conclusory, rather than explanatory, and does not explain why the trial judge rejected the appellant’s evidence.
[52] The circumstances of this case are readily distinguishable from the Smith decision, in which several items that the trial judge held undermined the appellant’s case, in fact corroborated the appellant’s version of events: Smith, at para. 19. In the circumstances of the instant case, the trial judge had described the appellant’s evidence in detail and characterized it as a “bare denial.” In that context, the summary of factors mentioned by the trial judge appropriately amount to and explain a finding by the trial judge that the appellant’s evidence was evasive and unworthy of belief about the very circumstances in which the complainant testified the assault had occurred.
[53] The trial judge also set out in detail his analysis of the complainant’s evidence and his reasons for finding it compelling. He considered and rejected defence assertions that the complainant fabricated her evidence and found “an absence of evidence of motive” to fabricate. Instead, he found the complainant’s evidence to be “unguarded and uncontrived,” and that she was “unshaken in the essential aspects of her account.”
[54] But the appellant complains about the conclusion of the trial judge’s analysis. In the appellant’s submission, notwithstanding that the trial judge properly instructed himself with respect to W.(D.), he simply treated the case as a credibility contest, and failed to consider whether he was left in a doubt by the appellant’s evidence: R. v. T.A., 2020 ONCA 783, at paras. 27-29.
[55] I disagree that the trial judge erred in this way. In the conclusion of his Reasons, the trial judge held:
In the end the analysis is not about the credibility in terms of who is more - it's not about credibility in terms of who is more believable as a witness. It is about proof beyond a reasonable doubt when determining if and how the Crown has met that high standard.
I am left with the bare denial of an accused whose evidence is subject to the criticisms detailed above. I also have the evidence of the complainant, which I accept for the reasons detailed above. I find the quality of the evidence of [the complainant] to be compelling to the point of overwhelming the denial of [the appellant], in convincing me beyond a reasonable doubt of the truth of her allegation. There will be a finding of guilt.
[56] The trial judge could not state more clearly that he did not treat the case as a mere credibility contest between complainant and appellant, or that nothing in the evidence left him with a reasonable doubt. Although the trial judge did not structure his analysis around an incantatory recitation of the second and third W.(D.) steps, he made his meaning plain. He rejected the evidence of the accused and the evidence called on behalf of the accused. The evidence that he did accept, the complainant’s evidence, satisfied him beyond a reasonable doubt about the appellant’s guilt.
Conclusion
[57] For the above reasons, the appeal is dismissed.
The Honourable Mr. Justice A.D. Kurke
Released: December 19, 2023