WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR23-04 DATE: 2024-01-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – N.S. Appellant

Counsel: Jason Pilon, for the Crown Bruce Engel, for the Appellant

HEARD: November 15, 2023

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL Justice Hélène C. Desormeau

Overview

[1] The appellant was convicted of sexually assaulting C.C. and R.Z., contrary to section 271 Criminal Code of Canada on June 3, 2022, by Justice Hackett. He was sentenced to 15 months incarceration. He was granted bail pending appeal on January 17, 2023, having served 53 days of this sentence.

[2] The appellant raised seven grounds of appeal, all of which are based on alleged errors of law:

1. The trial judge erred by providing inadequate or insufficient reasons in dismissing the appellant’s motion for a directed verdict of an acquittal at the conclusion of the Crown’s case.

2. The trial judge erred by allowing the Crown’s motion to admit similar fact evidence across counts. [1]

3. The trial judge failed to consider the possibility of innocent collusion between the complainants. Specifically argued at the appeal was that the complainants’ evidence had been tainted by collusion and the trial judge erred in concluding otherwise.

4. That the trial judge [2]:

a. Applied different standards of scrutiny to the evidence of the appellant as to that of the complainants.

b. This gave rise to a reasonable apprehension of bias, resulting in an unfair trial.

c. Further, the trial judge cited but improperly applied the test from R. v W.(D.), [1991] 1 SCR 681.

5. The trial Judge imposed a sentence that was harsh and excessive in the circumstances and placed disproportionate weight on the positive pre-sentence report to the detriment of the appellant.

[3] The Crown argued that all grounds of appeal ought to be dismissed.

[4] As stated in R. v. Trachy, 2019 ONCA 622, at para. 68:

Jurisprudence establishes that questions regarding error of law include the following: misinterpretation or misapplication of salient legal standards, including the elements of the offences; assessing evidence based on erroneous legal principles; making findings of fact not based on the evidence; failing to give legal effect to findings of fact or of undisputed facts; failing to consider all the evidence bearing on guilt or innocence; failing to properly admit evidence; and, failing to provide adequate reasons: R. v. Fitton, [1956] S.C.R. 958 (S.C.C.); R. c. Audet, [1996] 2 S.C.R. 171 (S.C.C.); R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.); R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 (S.C.C.); R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.); R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60 (S.C.C.); R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.).

[5] For reasons that follow, all grounds of appeal are dismissed. The appellant will be taken into custody today.

1 - The trial Judge erred by providing inadequate or insufficient reasons in dismissing the appellant’s motion for a directed verdict of an acquittal at the conclusion of the Crown’s case.

[6] At the appeal, following the Crown’s submissions and a further review of the evidence, the first ground for appeal regarding insufficient reasons for the dismissal of the directed verdict was abandoned by the appellant.

2 - The trial Judge erred by allowing the Crown’s motion to admit similar fact evidence across counts. 3 - The appellant submitted that the complainants’ evidence had been tainted by collusion and the trial Judge erred in concluding otherwise.

[7] While the appellant argued the first two grounds of appeal separately, R. v. Handy, 2002 SCC 56 indicates that the potential for collusion between complainants is an important element of the probative weight analysis. Additionally, as noted by the trial judge, the appellant pointed to the issue of collusion between the two witnesses’ grounds for the similar fact application to fail. As such, these grounds of appeal are analyzed together.

[8] As set out in Handy, similar fact evidence is presumptively inadmissible. The Crown must prove, on a balance of probabilities, that the probative value of such evidence outweighs its prejudicial effect in order to be admissible: R. v. Handy, 2002 SCC 56, supra, at para. 55.

[9] The appellant argued similar fact evidence is inadmissible because of concerns about moral and reasoning prejudice. It is accepted, however, that the risks of moral prejudice and reasoning are minor in a judge-alone trial, which this was, as the trial judge is presumed to know the law and have the ability to use the evidence properly: See R. v. (B.)(R.T.), 2009 ONCA 177.

[10] There are several factors the trial judge must consider when determining the issue of similar fact evidence, such as those found at paragraph 82 to 84 of Handy, which include similarities and dissimilarities in the evidence. Handy establishes that the list is not exhaustive.

[11] The appellant submitted the complainants’ evidence was not sufficiently similar and pointed to several important dissimilarities in the evidence which were overlooked by the trial judge, arguably leading to an improper evaluation of the probative value. These dissimilarities included consent versus lack of consent to being touched; the different circumstances which led to the sexual touching; and where the complainants were touched.

[12] These dissimilarities, as submitted by the appellant, were disregarded by the trial judge, who overemphasized general similarities, leading to an improper evaluation of probative value.

[13] The appellant also argued that there were no unique features between the complainants’ evidence. The appellant's statement to the complainants to “keep things between us” is a common utterance that could have been taken out of context. He argued that the statement was more likely to indicate innocent collusion than reliable similar fact evidence.

[14] On the issue of collusion, despite the dissimilarities argued above, the appellant argued there was an air of reality to collusion.

[15] Based on the argument that there was an air of reality to collusion having occurred, at trial, the Crown consequently must prove on a balance of probabilities that the similar fact evidence was not tainted by collusion: R. v. Handy, 2002 SCC 56, supra, at para. 112; also see R. v. Johnson, 2011 ONSC 195.

[16] The Crown submitted that a high degree of deference is owed to the trial judge’s decision regarding similar act evidence: See R. v. J.H., 2018 ONCA 245, at para. 11. The court in R. v. Tsigirlash, 2019 ONCA 650, used the term “substantial deference” is owed to a trial judge’s decision to admit similar fact evidence: See R. v. Tsigirlash, 2019 ONCA 650, at para. 48.

[17] Our Court of Appeal in R. v. Wilkinson, 2017 ONCA 756 indicated:

Similar fact rulings are entitled to deference on appeal, especially in the balancing of probative value against its prejudicial effect: see R. v. B. (C.R.), [1990] 1 S.C.R. 717 (S.C.C.) at p. 738; R. v. Arp, [1998] 3 S.C.R. 339 (S.C.C.), at para. 42; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 (S.C.C.), at para. 73; and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (S.C.C.), at para. 153. As Doherty J.A. explained in R. v. James (2006), 80 O.R. (3d) 227 (Ont. C.A.), at para. 33:

The process of balancing probative value against prejudicial effect is the trial judge's responsibility. Appellate courts will defer to the trial judge's assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant can demonstrate that the result of the trial judge's analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence: see R. v. B. (C.R.) (1990), 55 C.C.C. (3d) 1, at 23-24; R. v. Harvey (2002), 2002 SCC 80, 169 C.C.C. (3d) 576 (S.C.C.), aff'g (2001), , 160 C.C.C. (3d) 52 at para. 43 (Ont. C.A.); R. v. Handy, 2002 SCC 56, supra, at para. 153. See also R. v. Cresswell, 2009 ONCA 95 (Ont. C.A.), at para. 7: See R. v. Wilkinson, 2017 ONCA 756 at para. 27.

[18] The trial judge in her decision properly applied the correct legal test for the admissibility of similar fact evidence as mandated by R. v. Handy, 2002 SCC 56. She looked at the degrees of similarities and differences and other relevant factors.

[19] This court notes that the judge's task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance: R. v. Shearing, 2002 SCC 58 at para. 60.

[20] The trial judge subsequently addressed the question of collusion. The transcripts show that the trial judge was alert to the argument of collusion and the Crown’s onus as she raised the issue with the Crown immediately following the defence submissions on the issue of similar fact (see Volume 3, pages 98 and 103).

[21] As set out in R. v. Shearing, 2002 SCC 58, some communication is inevitable. However, communication does not necessarily trigger interference with the trial judge’s ruling: See R. v. M.A., 2017 ONCA 504; also see R. v. Shearing, 2002 SCC 58, supra.

[22] Further, as stated by the Ontario Court of Appeal in R. v. E.M.M., 2021 ONCA 436:

[C]ourts must be wary of jumping to the conclusion that that a witness's evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happened immediately after offending behaviour takes place: Peter Sankoff, The Law of Witnesses and Evidence in Canada, loose-leaf (Toronto: Thomson Reuters, 2019), at §7.4(c), adopted in R. v. L.(R.G.) (2004), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37, per Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288: R. v. E.M.M., 2021 ONCA 436.

[23] The trial judge noted in her reasons for judgment on the similar fact argument “the defence is not arguing that these two women colluded to fabricate their allegations, rather the submission were focused on the unintentional tainting or merging of evidence as a result of their conversations.” The defence raised four opportunities for tainting to have occurred which established evidence to support their argument that there was an air of reality to the witnesses colluding.

[24] After considering the evidence and submissions of both parties, the trial judge found there was no air of reality to the argument that there was unintentional collusion or tainting in the case. She went on to indicate that if she was wrong, then she found the Crown has met its onus to establish there was no collusion that would negatively impact on the probative value of the witnesses’ evidence. As a result, she found the evidence of each complainant to be highly probative and relevant to the issues. The trial judge then went on to assess the prejudice. Afterward, the trial judge found that on a balance of probabilities, the Crown had established that the probative value of the evidence outweighed its prejudicial effect, and granted the Crown’s application to use the similar fact evidence across counts.

[25] The jurisprudence is clear that decisions by trial judges regarding similar fact applications are owed a high degree of deference.

[26] Here, the trial judge properly applied the correct legal test for the admissibility of similar fact evidence, then appropriately directed her mind to the argument that there was an air of reality to witnesses colluding. While the trial judge found there was no air of reality to this argument, she also determined the Crown has met its onus to establish there was no collusion that would negatively impact on the probative value of the witnesses’ evidence. She went on to properly assess the probative value of the evidence versus its prejudicial effect, then granted the Crown’s application.

[27] This court finds that the trial judge correctly applied the law regarding similar fact evidence and collusion. This ground for appeal therefore is dismissed.

4 - For three combined grounds of appeal: (a) The trial Judge applied different standards of scrutiny to the evidence of the appellant and the complainant. (b) This gave rise to a reasonable apprehension of bias, resulting in an unfair trial. (c) Further, the trial judge cited but improperly applied the test from R. v W.(D.), [1991] 1 SCR 681.

(a) The trial Judge applied different standards of scrutiny to the evidence of the appellant and the complainant.

[28] The appellant submitted that the trial judge applied a different standard of scrutiny to the appellant’s evidence. It was argued that the trial judge’s decision demonstrated a charitable and tolerant attitude toward the complainant’s evidence. Conversely, the trial judge’s attitude towards the appellant’s evidence was harsh, unyielding, and demanding near perfection. Based entirely on collateral inconsistencies and unreliable demeanor evidence, the trial judge found that the appellant’s answers rambled into matters not related to issues at hand, were evasive and non-responsive on occasion, and drew an adverse inference regarding his credibility.

[29] Further, in assessing the appellant’s testimony, the trial judge gave considerable weight to collateral and peripheral inconsistencies, leading her to draw adverse inferences on collateral/peripheral issues.

[30] During oral argument, the appellant submitted “not only should the scrutiny be the same, the scrutiny should almost – it’s almost as though an accused should have preferred scrutiny, an advantage.” The court notes this argument is wrong in law.

[31] The Crown argued that the appellant failed to lay sufficient foundation for this ground of appeal, and this was simply a thinly veiled attempt to have this court reassess credibility.

[32] The Crown relied on R. v. C.F., 2017 ONCA 480, where the similar argument was that the trial judge was generous and understanding of the complainant’s evidence and unfairly critical of the appellant’s evidence. There, the Court of Appeal found the argument had no merit, indicating amongst other reasons that the trial judge was alive to the difficulties in the case, such as passage of time and the possibility of collusion. The Court of Appeal found the trial judge approached the evidence in an even-handed manner, and the appellant’s problem was that the trial judge did not believe his evidence. The court stated, “[t]he weakness of the uneven scrutiny ground of appeal in this case is matched by the baldness of its assertion.” Ultimately, the court found the trial judge preferred the complainant’s evidence, and she was entitled to do so.

[33] The appellant correctly citied in his factum R. v. Dim, 2017 NSCA 80, at para. 48: “It is an error of law to apply different standards of scrutiny to the evidence of the defence and Crown. The standard of review is correctness for errors of law. (See R. v. R. (C.), 2010 ONCA 176 (Ont. C.A.) and R. v. Gravesande, 2015 ONCA 774 (Ont. C.A.).)

[34] The court in Dim, 2017 NSCA 80, supra, at para. 49, went on to indicate that “[i]t is often recognized that a ground of appeal alleging the application of markedly different standards of scrutiny is a difficult argument to make. In R. v. Radcliffe, 2017 ONCA 176 (Ont. C.A.), these basic principles were reviewed:

[23] First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

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

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

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

[28] I begin with the obvious. 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 does not move the yardsticks on an argument based on uneven scrutiny.

[35] It is abundantly clear that this ground of appeal is a notoriously difficult ground of appeal. As the trial judge, her credibility findings are entitled to a high degree of deference. She is entitled to believe some, all or no evidence from any of the witnesses.

[36] The trial judge provided extremely detailed reasons for why she found the two complainants’ evidence to be credible and reliable. She went through the evidence including the questions put to the complainants in cross-examination. She identified both peripheral and material inconsistencies from the complainants.

[37] The trial judge identified for instance issues with R.Z.’s use of “would have” when providing her evidence, which was found to be a misuse of the tense and a personal quirk rather than trying to construct memory.

[38] The trial judge found that generally, C.C. did not embellish her evidence and R.Z. did not exaggerate her evidence. She found that neither complainant was reluctant to admit if they did not know something.

[39] During her analysis of the C.C.’s evidence, the trial judge properly identified the Crown onus to provide evidence as well as the evidentiary issue which arose when the Crown chose not to press C.C. as to the names of the two people C.C. spoke to about the incident.

[40] As to R.Z.’s evidence, the trial judge correctly noted frailties in her evidence, such as differences in her video-taped interview with police versus her evidence at trial and inconsistent wording such as “hit”, “pushed”, “touched”, “brushed”, but found that the words could all be “used to describe low-force actions in such circumstances and that there is no significant inconsistency in this area that negatively affects [R.Z.’s] credibility or her reliability.”

[41] Another issue identified in the evidence was R.Z.’s use of “inner thigh” versus top of her thigh versus her hand movements during her video-taped statement. However, the trial judge reconciled the evidence when she indicated:

This witness explained that at the time [of the video statement] she was already uncomfortable just being at the station and was providing a statement about what had happened in a manner that made her feel comfortable at the time. She did not want to go close to her private areas in front of this officer, and if my recollection is correct right now, it was a male officer.

Later, in cross-examination, [R.Z.] repeated this explanation, and added that she was just trying to get through this and that she was in a very high emotional state at the time of that statement.

I find that this young woman, who would have been 23 or 24 and pregnant, was in a very uncomfortable situation given the nature of her allegations, the work and friendship context and complications, being at the police station, and having to give a video statement about what happened in front of this officer.

I also find that this discomfort was evident in her demeanor depicted on that video. I find the choice to demonstrate what had happened more vaguely on the upper and not the inner thigh would be consistent with her avoiding having to say too much about how she was specifically violated in her more private areas in front of this officer and stranger. Nevertheless, this was an important part of her allegations and complaint and therefore an important issue to consider in assessing her overall credibility and reliability. (See pages 85 to 86 reasons for judgment.)

[42] In assessing the appellant’s evidence, the trial judge noted several internal inconsistences, such as when the appellant remembered an event “very clearly” then flatly contradicted or embellished his evidence. Some of the contradictions were peripheral, whereas several contradictions were found to be very important, such as whether the appellant would have touched R.Z. under her dress. The trial judge noted that “some of the changing answers are more consistent with [R.Z.’s] evidence.” She later noted regarding the appellant’s change in evidence regarding the distance he was from C.C. to be a significant change which negatively impacted his credibility and reliability. Some of the details where not particularly significant as to the area of the evidence but rather indicated “either [the appellant] had difficulty recalling the same details between chief and cross, or his memory about this event is not always reliable or credible.” (See page 99 reasons for judgment.)

[43] The trial judge also assessed the Browne v. Dunn issues, agreeing that not all the appellant’s evidence needed to be put to the witness. However, there were some important features of the appellant’s evidence that ought to have been put to the witness to permit them to respond, such as the contact between C.C. and the appellant following the tattoo incident, or R.Z. pulling her dress up to her knees.

[44] Whereas the trial judge found both complainant’s evidence to be generally straightforward, she found the appellant’s evidence evasive on several occasions.

[45] The trial judge assessed all major points of evidence and then provided cogent reasons for her credibility and reliability determinations, as well as findings of fact based on that evidence.

[46] As noted above, the trial judge’s credibility findings are entitled to a high degree of deference. The appellant must point to something that makes it clear that the trial judge actually applied a different standard of scrutiny in assessing the evidence. After reviewing all the evidence, including the reasons for judgment, this court is not persuaded the trial judge applied a different standard of scrutiny. This court finds that the trial judge took a balanced approach as to the evidence from all witnesses when arriving at her credibility and reliability findings.

[47] This ground of appeal is hereby dismissed.

(b) This gave rise to a reasonable apprehension of bias, resulting in an unfair trial.

[48] The appellant submitted that the uneven approach by the trial judge in assessing credibility and reliability gave rise to a reasonable apprehension of bias.

[49] The Crown argued there was no merit to the appellant’s submission. The trial judge was entitled to make findings on credibility and reliability, and she did not use a different standard of scrutiny in evaluating the evidence. Further, the trial judge is permitted to accept the complainant’s evidence and reject that of the appellant.

[50] The test to establish a reasonable apprehension of bias is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge: Roberts v. R., 2003 SCC 45.

[51] The Court of Appeal in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, 2000 CarswellOnt 4362 (ONCA), at para. 131, citing the Supreme Court of Canada decision R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.), summarized the principles of judicial basis. The applicable principles for the case at bar include:

o Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.

o The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable.

o The party alleging bias has the onus of proving it on the balance of probabilities.

o The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias, requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.

o Nonetheless, if the judge's words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.

[52] During oral argument, the appellant submitted that “I can’t point to any specific sign of bias, aside from that general different treatment from the complainants to the accused. So, at the end of the day when one looks at the different standard applied toward her assessment of credibility of the complainants compared to the accused, I would submit that one has to conclude that the trial judge was bias [sic] against [the appellant] for whatever reason.”

[53] In further argument, the appellant argued, relying on R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 104, that that impartiality describes “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case", and thus there is no requirement to identify a specific phrase or comment, as the state of mind or attitude of the tribunal is what is to be assessed.

[54] As noted above, the onus is on the appellant of proving bias on the balance of probabilities.

[55] Here, the strongest argument raised by the appellant was the alleged different standard the trial judge assessed the credibility of the complainants versus the appellant. However, this court has already determined that a different standard of scrutiny was not applied by the trial judge. Should this court be wrong on that determination, this court is aware that the threshold for deciding there exists a reasonable apprehension of bias is high.

[56] After reviewing all the evidence, this court found no evidence by the trial judge’s words or conduct to establish that she was biased.

[57] This court is satisfied that a reasonably informed person, observing the trial judge's conduct during the entire trial and reading her reasons for judgment, would have no difficulty in concluding that she remained impartial and that she demonstrated no actual or apprehended bias.

[58] The court therefore also dismisses this ground of appeal.

(c) The trial judge cited but improperly applied the test from R. v W.(D.).

[59] The appellant argued that the trial judge cited but improperly applied the W.(D). test, stating “[b]ased on all the evidence, and after a careful review and considerations of all the reasons set out above, I find:

1. That [C.C.] is a credible and reliable witness;
2. That [R.Z.] is a credible and reliable witness; and
3. That N.S. [the appellant] is not a credible or reliable witness.”

[60] In addition, the appellant submitted:

o The appellant testified comprehensively and was not shaken on cross-examination. He did not tarnish the character of the complainant in his testimony. His denials of the incidents were firm and unwavering.

o The appellant has the benefit of the presumption of innocence and this presumption remains with him throughout the trial unless and until Crown counsel proves their guilt beyond a reasonable doubt.

o Determining guilt or innocence is more than a credibility contest. If the trial judge was to find that the evidence of the complainant was more credible and reliable than the evidence of the appellant, such a finding is not itself sufficient to displace the presumption of innocence.

o Proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of an accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether that evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken as a whole raises a reasonable doubt: R. v. J.M.H., 2012 PECA 6, [2012] P.E.I.J. No. 10 at para 30, in adopting R. v. Ellis, 2006 PESCAD 25 at para 18.

[61] The W.(D.) framework, set out in the manner which the appellant argues it must be applied, is:

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.

[62] During oral argument, the appellant indicated he was not asking this court to revisit and necessarily reassess credibility, but to determine if R. v. W.(D.) was properly followed by the trial judge. To properly apply W.(D.), the appellant submitted that the trial judge must start off with whether she believed the accused. It was argued that the trial judge did not properly assess this factor as she applied a different standard to the evidence and was biased.

[63] The appellant then submitted that the trial judge almost placed the appellant “at a point where he had to prove his innocence, as opposed to just having to raise a doubt. I can’t point to any words in the transcript, I can’t point to anything that the trial judge said in that regard, but that is the impression you get when looking at the bias argument, and looking at the different standard argument, and looking at the trial judge’s assessment of W.(D.). And what better way to conclude that the trial judge didn’t really give [the appellant] any break at all, and the [appellant] doesn’t need a break, but he has the right not to be treated the same as a complainant witness at trial given the burden of proof and the onus being on the Crown.” [emphasis added]

[64] Relying on R. v. Ahamad, the Crown argued the trial judge was not obliged to recite the principles of W.(D.) as if it were some form of “magical incantation.” So long as the principle of reasonable doubt remained the focus of the analysis, it was not necessary for the trial judge to present her credibility reasoning in any particular order: See R. v. Ahmad, 2022 ONSC 6727, at para. 21. Also see R. v. J.M.H., 2012 PECA 6, at para. 28.

[65] The Supreme Court of Canada in R. c. Dinardo, 2008 SCC 24 stated that there is nothing sacrosanct about the formula set out in W. (D.). The court went on to state:

What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt: R. c. Dinardo, 2008 SCC 24, at para. 23.

[66] The Court of Appeal in R. v. Minuskin, indicated that:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence: R. v. Minuskin, 2003 CarswellOnt 5216, at para. 27.

[67] Here, the trial judge found the two complainants were credible and reliable witnesses, and found the appellant was neither. The trial judge went on to indicate:

In this regard, applying the test in R. v. D.(W.) [sic], I specifically reject [the appellant’s] evidence about what happened during the two incidences as not credible and reliable where it is inconsistent with the evidence of [C.C.] and [R.Z.].”

I also find that this is not a situation where his evidence might reasonably be true, however, having made these determinations, that does not end matters. The Crown bears the onus to prove each and every element of these offences beyond a reasonable doubt based on all the evidence. (See page 113 of reasons for judgment)

[68] The trial judge went on to analyze the elements of the offences, the actus reus, the mens rea, and make findings of facts as to what occurred. The trial judge relied on all her reasons as found in her judgment, and properly applied the onus on the Crown to prove beyond a reasonable doubt the actus reus and mens rea of the offences against C.C. and R.Z.

[69] Ultimately, based on her reasons, the trial judge did not believe the appellant’s evidence. She found the evidence of the complainants to be credible and reliable. She properly placed the onus on the Crown. Then, on the evidence she accepted, the trial judge was convinced beyond a reasonable doubt of guilt of the appellant.

[70] This court is not persuaded that there is not any single, solitary way to assess and apply W.(D.).

[71] This court finds that the trial judge correctly considered the evidence as a whole, with the onus on the Crown, and found that the appellant’s guilt was made out beyond a reasonable doubt. As such, this ground for appeal is dismissed.

5 - The trial Judge imposed a sentence that was harsh and excessive in the circumstances and placed disproportionate weight on the positive pre-sentence report to the detriment of the appellant.

[72] As his final ground of appeal, the appellant argued that the court “did not consider” or “placed no weight” regarding several mitigating factors, such as having no criminal history, having a good work history and being a contributing member of the community. He also submitted that “the incidents in question did not involve any violence, the appellant was not in a position of trust, nor was there an abuse of trust in the circumstances surrounding the offence. The appellant was not in a position of authority or power vis-à-vis the complainants.”

[73] The appellant also submitted that the pre-sentence report was very favourable to him, that he was remorseful and expressed regret. The PSR also noted that there had been two years since the original charges without any new charges, and the “dissuasive effect of the current legal proceedings and that presents a low risk of recidivism”.

[74] The appellant also argued in his factum but did not pursue same at the hearing, that the SOIRA order was not necessary.

[75] Ultimately, the appellant submitted that a suspended sentence and a period of probation ranging from 24 to 30 months was a more appropriate sentence than that imposed by the trial judge, or alternatively, a conditional sentence order if a custodial sentence is appropriate.

[76] However, in submissions, the appellant acknowledged that a jail sentence could have been warranted given there were two complainants, their ages, the lack of remorse and having been found guilty after trial. The appellant argued that should this court dismiss the sentence appeal, the balance of the appellant’s sentence could be converted to a conditional sentence, for another four to seven months.

[77] The Crown submitted that the intervention of an appellant court on sentencing requires there to be an error in principle, a failure to consider a relevant factor or an error in determining aggravating or mitigating factors: R. v. Parranto, 2021 SCC 46. There was no error in principle identified by the appellant.

[78] The Crown argued that the trial judge considered the relevant factors, carefully balanced the aggravating and mitigating factors such as the pre-sentence report, the letters of reference and the victim impact statement.

[79] The Supreme Court of Canada in Parranto, 2021 SCC 46, supra at para. 9 stated:

This Court has repeatedly expressed that sentencing is "one of the most delicate stages of the criminal justice process in Canada" (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para. 1).

[80] The Supreme Court went on to indicate that “[s]entencing courts are best positioned to craft a fit sentence for the offenders before them. Sentencing is a "profoundly subjective process", and the sentencing judge "has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record" (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge also has "unique qualifications of experience and judgment from having served on the front lines" and "will normally preside near or within the community which has suffered the consequences of the offender's crime" (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91): See Parranto, 2021 SCC 46, supra, at para. 13.

[81] Sentencing judges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal (Lacasse, 2015 SCC 64, at para. 11). It remains the case that, where a judge deviates from a sentencing range or starting point, no matter the degree of deviation, this does not in itself justify appellate intervention: See Parranto, 2021 SCC 46, supra, at para. 29.

[82] The Supreme Court also stated:

It bears emphasizing that the sentencing judge's discretion includes the choice of a sentencing range or of a category within a range, and that this exercise of discretion cannot in itself constitute a reviewable error (Lacasse, 2015 SCC 64, at para. 51). It is an error of law for an appellate court to intervene merely on the ground that it would have placed the offence in a different range or category. Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacts the sentence, an appellate court must not vary the sentence on appeal (paras. 11 and 67). The focus of the demonstrable unfitness inquiry is on whether the sentence is proportionate, not whether the sentencing judge applied the correct starting point, sentencing range or category within a range (Lacasse, 2015 SCC 64, at paras. 51 and 53; Friesen, 2020 SCC 9, at para. 162): See Parranto, 2021 SCC 46, supra, at para. 30.

[83] While the appellant argued that several “mitigating” factors were not considered by the trial judge, this court notes that the absence of aggravating factors, such as not being in a position of trust, is not a mitigating factor.

[84] In her reasons for sentence, the trial judge noted the pre-sentence report was generally positive. She however expressed concerns about three opinions proffered by the author of the PSR due to gaps in information obtained by the author. She also noted, slightly differently than the appellant’s submissions at appeal, the appellant presents at low risk of recidivism “in the short term.”

[85] The trial judge also reviewed the 9 reference letters provided by the appellant, finding them all to be very positive references. She reviewed the victim impact statement, the case law and the principles of sentencing. She also specifically reviewed the mitigating factors, including the appellant’s long, positive pro-social engagement with the community, being a contributing member to the community, having a lot of support from friends and family, his being on bail for a long period of time with no further offences.

[86] The trial judge also reviewed the aggravating factors, including the seriousness of the offences, finding that they involved opportunistic predatory behaviour by the appellant, and the effect on the complainants. The trial judge found this was not a breach of trust situation, but “there were aspects of trust in the offences”.

[87] The trial judge noted the most important principles in sentencing in sexual assault cases are denunciation and deterrence. She also correctly noted that as the appellant was a first-time offender, the “court must be and is still very interested in rehabilitation for [the appellant], as the purposes of sentencing indicate, in order to try to prevent further offences and promote a sense of responsibility.”

[88] The trial judge found that a conditional sentence, in these circumstances, did not provide the right denunciation and deterrence for this individual, or for other like-minded individuals. She also found a suspended sentence was inappropriate for the same reason. She noted the Crown was seeking a global position of 15 to 18 months jail, with 30 to 36 months probation.

[89] The trial judge found the appropriate sentence was nine months jail for each offence, but having considered the principles of totality, sentenced the appellant to 15 months jails for the two offences, concurrent, followed by 24 months probation, as well as other uncontested ancillary orders. She also found that a 10-year SOIRA order was appropriate.

[90] This court is mindful that sentencing judges’ decisions are to be afforded a high degree of deference.

[91] The appellant acknowledged that the sentence imposed was within the appropriate range, and that sentencing is more of an art than a science.

[92] This court is not of the view that the sentence is demonstrably unfit, or the sentencing judge made an error in principle that impacts the sentence.

[93] Having considered the evidentiary record and the reasons provided by the trial judge, this court is of the view that the trial judge’s sentence, including the SOIRA order, was fair, fit, principled and proportionate to the gravity of the offence and degree of responsibility of the appellant, as indicated in R. v. Friesen, 2020 SCC 9, at para. 30. As such, this ground of appeal is dismissed.

The Honourable Justice Hélène C. Desormeau

Released: January 18, 2024

COURT FILE NO.: CR23-04 DATE: 20240118 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – N.S. REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL The Honourable Justice Hélène C. Desormeau

Released: January 18, 2024

[1] As noted below, grounds 2 and 3 will be analyzed under one heading.

[2] While articulated separately in the factum, the appellant argued the grounds together. Therefore, this court will also analyze these grounds together.