BARRIE COURT FILE NO.: CR-22-048-00AP DATE: 20240206 CORRIGENDA : 20240206

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DINIS DASILVA Appellant

Counsel: Jennifer Armenise, for the Crown Respondent Jessica Zita, for the Appellant

Heard: January 15, 2024

REVISED REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

(The text of the original Reasons for Decision has been corrected with the text of the corrigenda, released February 6, 2024)

HEALEY, J.:

Nature of the Appeal

[1] On March 11, 2022, the Appellant, Dinis DaSilva, was convicted of sexual assault and sexual interference against R.G. by Justice Bliss sitting at the Ontario Court of Justice in Barrie. The sexual interference was stayed as per R v. Kienapple, [1975] 1 S.C.R. 729.

[2] The Appellant was sentenced to 18 months custody, followed by a three-year probation order, and a lifetime SOIRA and s. 161 orders were imposed. He was released on bail pending appeal 10 days after his sentencing.

[3] The Appellant appeals against conviction and sentence.

Ground of Appeal

[4] The Appellant submits that the trial judge neglected the analysis required by R. v. W.(D.), (1991), 63 C.C.C.(3d) 397 (S.C.C.), and in doing so misapplied the burden of proof.

[5] His counsel argued that the trial judge’s reliance on the victim’s police statement, without attempting to reconcile it to the contradictions in her testimony, led to forbidden reasoning that shifted the burden of proof to the Appellant.

[6] The Appellant also submits that the SOIRA order is unlawful, as it should not have exceeded ten years.

Trial Evidence

[7] In March 2018, R.G. disclosed to her grandmother, T.C., that sexual offences had been perpetrated against her by the Appellant. R.G. was living with her grandmother at the time. Her mother, H.G., had a drug addiction and was living with the Appellant. R.G. visited her mother at the residence she shared with the Appellant.

[8] R.G.’s mother and grandmother testified. Her mother was found to be unreliable and not credible. Her grandmother’s evidence was admitted for narrative only. Accordingly, R.G.’s evidence was the sole basis for the verdict, as the Appellant did not testify.

[9] R.G. gave a video-taped statement to an officer in 2018 when she was five years old. A social worker from Simcoe Muskoka Family Connexions was also present. She told the officer that the Appellant had touched her on the vagina and that she had touched his penis. Her statement was admitted pursuant to s. 715.1 of the Criminal Code.

[10] R.G. was eight years old at the trial. She did not adopt this aspect of her statement at trial, and her trial evidence was inconsistent with this crucial part of her statement to police.

[11] At first, she stated that she could not recall talking to the officer about the Appellant, then later in her evidence-in-chief she stated “Well, I sort ‘a remember it, but I remember it even better now.”

[12] In her statement she told the officer that she was scared; at trial she said that she did not know why she was scared.

[13] In her police statement she said that she loved the Appellant; at trial she said that that was not the truth, and could not explain why she had lied. R.G. said that she still did not like the Appellant, although could not explain why.

[14] Most importantly, she had no memory of the Appellant touching her vagina, both denying that she had said that to the officer, and later saying that she could not remember telling the officer that he had done so.

[15] She testified that she had no memory of him touching her vagina at all. She was asked this question twice; on the second occasion she maintained her evidence on this point. When asked whether she knew why she would tell anyone that he did, her response was “well, no”. She denied any memory of telling her grandmother she had been touched by the Appellant.

[16] R.G. also said that she had no memory of touching the Appellant’s privates and admitted that it could be possible that that never happened.

[17] She confirmed that she had no memory of any event. She also stated that it was possible that he never touched her, and she never touched him, in the manner described in her videotaped statement:

Q. Is it possible that Dinis did not touch you? And when I say "touch you" I should be clear, [R.G.]. I'm sorry. Is it possible that Dinis did not touch your vagina? A. It could be possible. Q. It could be possible, okay. It's also possible that you didn't touch Dinis' private at all? A. It could be possible as well.

Appeal Against Conviction: The Law

[18] Section 686(1)(a) of the Criminal Code sets out three grounds upon which an appellate court might allow an appeal against a conviction:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice.

[19] The trial judge’s appreciation of the evidence and credibility and reliability findings are to be given significant deference on appeal: R. v. O.M., 2014 ONCA 503, at para. 19; R. v. T.M., 2014 ONCA 854, at para. 31.

[20] The trial judge is presumed to know the law, and his reasons need only be sufficient to tell the Appellant why he was convicted, and to permit an appellate court to review them.: R. v. Sheppard, [2002] S.C.J. No.869 (SCC) at paras. 24 and 25.

[21] Crown counsel concedes that W.(D.) was not mentioned in the Reasons. She submits that this is unnecessary, as long as the Reasons demonstrate an awareness of the relationship between the standard of proof and witness credibility as addressed in W.(D.). This submission is supported by R. v. Smits, 2013 ONCA 524, at para. 39, where the court noted that slavish adherence to the W.(D.) formula was not necessary in a judge alone trial, as long as it is clear from an examination of the reasons that the trial judge has had regard to the basic principles underlying the W.(D.) instruction.

[22] Crown counsel relies on R. v K.B., 2015 ONSC 3410 at para. 45, where Hill J. stated:

While rigid adherence to the W.D. formula is unnecessary (R. v. S.W.D., [1994] 3 S.C.R. 521, at p. 533; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7), and particularly so in reasons for judgment in a judge-alone trial, it is nevertheless essential that “the substance of the W.(D.) instruction be respected” in a trial court’s reasons: Dinardo, at para. 23. In other words, it is generally considered critical that the record demonstrate an appreciation for and a proper application of the criminal standard of proof to the whole of the evidence: R. v. J.M.M., 2012 NSCA 70, at para. 72, leave to appeal refused [2012] S.C.C.A. No. 402. So, for example, in applying the principle of reasonable doubt to credibility assessment, a trial court must recognize that because “there is a distinction between a finding of credibility and proof beyond a reasonable doubt”, “a reasonable doubt can survive a finding that the complainant is credible” (R. v. J.W., 2014 ONCA 322, at para. 26) and a trial court must recognize that the W.(D.) analysis does apply in criminal trials where the accused does not testify.

[23] In Smits, at paras 37, referencing the court’s earlier decision of R. v. D.(B.), 2011 ONCA 51, at para. 114, the court stated:

…even if an accused does not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favorable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the evidence favorable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt. In that event, the trier of fact must acquit.

[24] Defence counsel relies on R. v. T.R., 2007 ONCA 374, in which the court allowed the appeal because the trial judge did not properly apply W.(D.) when faced with two contradictory stories by the complainant. At trial the complainant stated that she had lied to the police because she was nervous, scared, and did not trust the CAS intake worker who came to speak to her at school, and recanted her allegations that her father had sexually abused her. The trial judge accepted the video evidence as credible because the complainant had cited the names of several people with whom she had discussed the allegations, and because he concluded that she was telling the truth in the statement because she had no motive to lie. Both grounds for accepting the complainant’s evidence were found to be reasoning errors. Ultimately, the trial judge erroneously concluded that his acceptance of the video statement as reliable led to an inevitable rejection of the appellant’s evidence beyond a reasonable doubt. This reasoning appeared to shift the burden of proof to the appellant to rebut the complainant’s evidence.

The Trial Judge’s Reasons

[25] The trial judge referred to R. v. B. G., 1992 S.C.R. 30 for guidance on how to treat a child’s evidence, noting that the Crown must still prove the allegations beyond a reasonable doubt.

[26] After dealing with the evidence of her mother and grandmother, the trial judge stated “[f]or the most part, the case against the defendant comes down to the evidence from the videotaped interview with police in 2018 when [R.G.] was five years old”.

[27] The trial judge provided a thorough summary of R.G.’s police interview, reviewing its crucial parts. His Reasons for Judgment state:

In much the same way that Detective Storey asked R.G. to tell him about her family, he asks her to tell him everything she could about Dinis. R.G. then tells the officer he keeps secrets but that she did not want to tell what the secrets were, that she was too scared. When the officer tried to convince her to tell him the secrets, R.G. told him that she did not want to, that Dinis told her it was a secret, that he told her about the secret a hundred times when she was at her mom’s house, that he does not want her to tell the secrets. She then said that grandma only knows it because she figured it out. But when the officer asked her what grandma figured out, R.G. said she was scared.

R.G. then said that she was in Dinis’ room when he told her about the secrets. It was just the two of them. She could not remember if the door was open or shut. R.G. still, however, refused to disclose what the secret was because she wanted to go and play. Detective Constable Storey then moved on to other topics and then returned to the question of what happens when she is in Dinis’ room. R.G. then tells the officer that Dinis plays with her, gives her rollercoaster rides in the living room and her bedroom by lifting her up and shaking her around but she tells him to do that. When asked if they do anything else, R.G. says that is all they do.

When the officer returns to the topic of the secrets, R.G. maintained that she could not tell them because she is scared. When asked why there are secrets when she and Dinis are friends, she says because Dinis is her secret boyfriend. She says the first time we saw each other, she fell in love. She described that her eyes were like a heart-shape but she did not tell Dinis that. When asked why Dinis did not want her to tell a secret, R.G. repeated that she was scared that it was a bad one, that if Dinis wants me to do something I just do it, he said not to tell anybody, that Dinis is the boss of her because she is smaller and he is bigger, and that she could not tell the secrets because Dinis wants her to keep them.

The officer then asked R.G. a series of questions about what you call the bottom that the bathing suit covers and whether it covers her bum and vagina, and she tells him yes. The officer then asks R.G. who was allowed to touch her vagina. It is then that R.G. tells him, “Dinis sometimes.” When asked to tell about Dinis touching her vagina, R.G. said that was why she was scared, that she is scared to tell the officer more about Dinis touching her vagina and, instead, tells him that maybe she will tell him next time because she is a little bit scared. When asked where she is when Dinis sometimes touches her vagina, she says in his room, her clothes are on and her pants pulled down. She said her mom is watching tv at the time. She said he touches it with his hand. When asked where he touches, defence and Crown counsel agreed that while on camera R.G. pointed to her vagina and said, “Here.” When asked if “here” is her vagina, she says, “Yes.” R.G. said that when Dinis touches it, her pants are off and her underwear is pulled down. He does this at her house, meaning her grandma and grandfather’s house, or her mom’s house, which is in fact Dinis’ house. When asked where her grandparents were when Dinis does this at their house, she thought they were in their bedroom. She said it happened more than one time.

R.G. told Detective Constable Storey that when Dinis touches her, it makes her feel good and he touches her vagina and he tells her that it is good, that he loves it and sometimes he asks her to touch him. The Family Connections worker, who was also present in the interview, then tries to have R.G. describe what body part Dinis asked her to touch. As the worker goes down a list, she points to areas on her own body. R.G. tells the worker Dinis does not get her to touch his belly or his bum, but while R.G. is obstructed by the worker’s back, the worker asks “Here?” presumably pointing to some area on her body. But the only view from the interview is of the worker’s back, so whatever the worker points to, it is impossible to tell. While R.G. says, “Yes”, she is not able to describe in words the body part Dinis presumably asked her to touch, and because whatever area the defendant purportedly asked R.G. to touch is not pursued, it is impossible to tell.

As the interview concludes, the Family Connections worker returns to when R.G. said she was scared if she told the secret and asked what she is scared about. R.G. tells her she is not scared anymore because she has already told them it, that he, meaning Dinis, touched her vagina and he made her touch him.

[28] He also considered whether R.G. had been influenced or coached by her grandmother before going to the police, ultimately concluding that the evidence did not support such a finding.

[29] His assessment of her interview was as follows:

R.G.’s statement to police showed a five-year-old girl who seemed blissfully unaware of the significance of what she said Dinis had done. She was scared to tell their secret because it was their secret. I do not accept that she was manipulated in saying these things about Dinis by her grandmother. There is simply no evidence of that. As she told the officer, Dinis played with her, took her places. She said she was in love with him, that he was her secret boyfriend, he made her feel good when he touched her. Those are the comments of a young girl who, even during the interview, expressed that she really liked him. It took a great deal of coaxing to get her to reveal her secret, a secret she confirmed at the end of the interview of Dinis touching her vagina. She did not appear to have any awareness that Dinis would get in trouble because of what she said.

[30] The trial judge then pointed out the various ways in which R.G.’s trial evidence differed from what she told the police, including her admission that it was possible that the Appellant did not touch her vagina and she did not touch his private areas, as she had no memory of any of it.

[31] The trial judge concluded from what he saw on the video that R.G. had appreciated the importance of telling the truth and concluded that she was honest when testifying before him that she had no memory of the incidents occurring. He also correctly noted that it was R.G. who brought up Dinis’ name, and that there was nothing leading or coercive in the questioning during the interview.

[32] He then explained why the inconsistencies between her police statement and her sworn testimony did not raise a reasonable doubt:

While she did say three years later when this matter finally came to trial that she had no memory of having been touched nor of having spoken to her grandmother or police and that it might not have happened, it has to be remembered that she is a child who is trying to recall something that happened almost half her life before. When she recounted the events to the officer and the Family Connections worker, she told the secret in a very matter of fact way. There was nothing in what she said nor how she said it nor how she provided her account that was inconsistent or contradictory. She was a credible witness whose account can be relied upon as representing an accurate and truthful one. Against that, however, is her evidence in court as an eight-year-old that was that she cannot say that Dinis did touch her and she has no memory. Does that in the circumstances of this case – as the defence urges me to find – raise a reasonable doubt? In my view, after careful consideration, it does not. It is not the defendant’s burden to disprove anything. The assessment is whether considering all of the evidence, including R.G.’s evidence that the touching might not have taken place, establishes Dinis DaSilva’s guilt beyond a reasonable doubt. It is not the same as when an adult or even adolescent gives such evidence. R.G. is eight years old. She cannot recall events half her lifetime before when she was five years old. Because she is a child, that does not mean that the burden of proof beyond a reasonable doubt is lower but that the standard by which the credibility and reliability of a five-year-old is assessed, and that is not the same as the credibility and reliability of assessment that would be engaged with an adult. Her account, recorded from over three years ago, admitted into evidence on consent, remained reliable and credible even after cross-examination. That she does not recall now what occurred over three years ago does not take away from that evidence which I do accept.

[33] Prior to declaring his guilty verdict, the trial judge concluded by reviewing the principles and ramifications of the presumption of innocence, and the Crown’s burden of proving the Appellant’s guilt beyond a reasonable doubt.

Analysis

[34] The Reasons show that the trial judge had an appreciation for and properly applied the criminal standard of proof to the whole of the evidence. He discussed the principles of proof beyond a reasonable doubt and the Crown’s burden of proof. He presented a full review of the evidence of all the witnesses. His Reasons show his awareness of the juxtaposition between R.G.’s accounts at ages five and eight.

[35] Even without the accused testifying, faced with the fact that the evidence called by the prosecution was favourable to the Appellant’s case, the trial judge was required to show that he had addressed W.(D.). I find that he did; his Reasons show that he understood that he was required to acquit if he had a reasonable doubt about whether the offences had occurred, once he had grappled with the significant inconsistencies in the complainant’s evidence.

[36] After fully reviewing the inconsistencies, the trial judge asks himself whether her lack of memory, and the fact that she could no longer say that the Appellant touched her, raised a reasonable doubt. He also noted he remained alive to whether he was shifting the burden to the Appellant, as he noted immediately after that statement that it was not the Appellant’s burden to disprove anything.

[37] The trial judge appears to accept that the change in accounts was due to a genuine failure to remember, explaining the almost complete lack of memory for the key issues by her age and the passage of time. However, the difficulty in the Reasons arises from the fact that he found that “her account, recorded over three years ago, admitted into evidence on consent, remained reliable and credible even after cross-examination.”.

[38] This is not an accurate assessment of her evidence, given that the cross-examination revealed that she could not longer confirm that the touching had occurred. However, by that point in his Reasons the trial judge had already described the changes in her accounts and had already fully dealt with the inconsistency. He had explained why he found her interview to be credible, and he had explained why he found her failure to remember did not give rise to a reasonable doubt.

[39] This case is unlike T.R. In T.R. the trial judge failed to explain why he accepted the video recordings, and why he did so despite the complainant’s recantation at trial. Further, as the Court of Appeal found, the reasons indicate that the trial judge in T.R. believed that his acceptance of the video statement required him to reject the appellant’s evidence beyond a reasonable doubt. The trial judge’s reasons did not show that he understood that he could accept that evidence but still be left in doubt by the evidence as a whole.

[40] In contrast, in the case before me the trial judge found R.G. to be credible in both versions that she presented, and he explained how he reached those conclusions. His Reasons show that he remained aware that, despite his view of her credibility, it was possible that the inconsistency could raise a reasonable doubt. However, he decided that it did not, which was both reasonable and supported by the evidence.

[41] Accordingly, I find no error, and order that the appeal against conviction is dismissed.

Appeal Against Sentence

[42] Crown counsel concedes that the SOIRA order should not have been for life.

[43] The Appellant submits that because the Crown proceeded summarily, and the Appellant in the end was convicted of one offence, the sexual interference having been stayed, the duration of the order under s. 490.013(2)(a) should have been ten years.

[44] Under section 490.013(2)(a), an order made under s. 490.012 (1) ends ten years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years. Under subsection (c), it applies for life if the maximum term of imprisonment for the offence is life.

[45] Accordingly, this court orders that the SOIRA order shall be quashed, and a new SOIRA order be made for a period of ten years.

The Honourable Madam Justice S.E. Healey Released: February 6, 2024

CORRIGENDA

1. Paragraph 27 – the first line has been corrected to reflect the victim’s initials as R.G.; and,
2. Paragraph 31 – the first line has been corrected to reflect the victim’s initials as R.G.