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 consequences 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 173, 210, 211, 212, 212.1, 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.
DATE: 20250408
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King, Respondent
AND
E. O., Appellant
BEFORE: Justice Spencer Nicholson
COUNSEL: M. McLean for the Crown, Respondent
M. Halfyard and S. Bondoux for the Appellant
HEARD: September 12, 2024
REASONS ON SUMMARY CONVICTION APPEAL
1E. O. appeals from his conviction on two counts of sexual assault by Dean J. of the Ontario Court of Justice on August 9, 2023.
Facts:
2The charges against the Appellant arose from allegations that during otherwise consensual sexual activity, the appellant struck the complainant without her consent. This is said to have occurred on three separate occasions, August 17, 2021, September 8, 2021, and February 2, 2022.
3There were originally three counts. The count arising from the August 17, 2021, incident was withdrawn just prior to trial. As a result of a successful Seaboyer application, evidence from the August 2021 incident was admitted into trial for limited purposes.
4The only witnesses at trial were the complainant and the appellant.
5The appellant and complainant had been best friends since elementary school. They attended the same high school and college. They both worked with the same Police Service Board. The appellant was a cadet, and the complainant was employed in a civilian position.
6The complainant testified that on September 8, 2021, she and the appellant had taken a road-trip together. They then returned to her house, watched Netflix in the living room and then went upstairs to her bedroom where they engaged in consensual sexual intercourse.
7The complainant testified that during the intercourse, the appellant struck her across her face. She could not recall how long after the start of the intercourse this occurred, or for how long the intercourse continued afterward. She could not recall if the appellant hit her with an open or closed fist, though she described it as a “slap”. She testified that there were no words exchanged before or after the slap. She described that she did not say anything at the time because she was shocked and because it was in the middle of intercourse. Afterwards, they returned downstairs and continued to watch Netflix downstairs. The appellant later went home because he was not feeling well.
8As noted, evidence about the August 2021 incident was admissible following the Crown’s Seaboyer application. The complainant testified that she had previously “set a boundary” with the appellant weeks earlier on August 17, 2021. On that occasion, during sex the appellant had struck her “really hard” in the back of her head. She told him that she was “not ok” with this and asked that he not do it again. She testified that he said something to the effect of “duly noted, sometimes I get carried away”.
9The appellant did not deny that the sexual activity took place on both August 17, 2021, and on September 8, 2021. However, he denied ever striking the complainant. He also had some different recollections as to where the September 8, 2021, sex took place, believing that it was in the main floor living room. He also thought that it was a short event, no longer than two minutes, because he had ejaculated prematurely. He also denied hitting her on August 17, 2021. There was, therefore, no conversation about him hitting her following the intercourse.
10Both parties testified that the relationship continued normally after September 8, 2021. However, near the end of October or early November, they ended the relationship. The appellant testified that the complainant told him that her feelings towards him exceeded what she expected, and they decided to just be friends. However, he further testified that though they were now seeing other people, their emotional relationship continued, and she expressed that she loved him sometime in November.
11On February 2, 2022, the appellant was at the complainant’s house seeking emotional support after breaking up with his girlfriend. He arrived around 7:00 pm. They sat on the couch and watched a movie. They started cuddling and kissing. The complainant testified that this was consensual.
12However, the complainant testified that while they were kissing on the couch, she was positioned underneath the appellant with his legs straddling her. He put his hand around her neck, putting all of his body weight on her. She described that when he put his hand around her neck, the “positioning on my neck was really strange”. She found it hard to breath. This lasted for about seven to ten seconds. He then, according to the complainant, struck her “really hard” on the right side of her face.
13The blow was hard enough to dislodge her earring, and her ear was ringing. She did not have any bruising or marks as a result. She told him “I don’t like that”, and he responded. “you do like that”. They continued to kiss, and they then went upstairs where they continued to kiss and touch, while fully clothed.
14The appellant, during his testimony, denied choking or slapping the complainant. He testified that after they cuddled, the complainant straddled him and undid his pants. However, he stopped her and flipped over so that he was straddling her. He did not want to have intercourse because of his recent breakup. He was in an awkward position on the couch and had one foot on the floor and one hand on the top of the couch to hold himself up. He explained that he very briefly put his weight on the complainant’s collarbone or chest area in order to reposition himself.
15There were a series of text messages between the parties following the February 2 incident. The complainant sent a text to the appellant that night saying, “thank you—that was really nice of you”. She testified that this was because he brushed the snow off her car for her.
16On February 5, they exchanged further text messages. The complainant’s words suggest confusion about their relationship, and she notes “You know how I feel about you, but I can’t keep being put in a position where I open my heart back up to the idea of this if it’s never going to happen. I don’t deserve that.”
17She also stated, “I also didn’t want to bring it up, but it really hurt me that you hit me in the face the other day when we’ve had a conversation before that I’m not okay with that.” She then said, “you know I love you to death, and that I will always be here for you, but I can’t be there for you in that way because it is going to break me again.” The appellant responded, “That’s totally understandable, was not my intention to make you feel that way, genuinely sorry.”
18The complainant testified that she did not take the appellant’s response as acknowledging that he had hit her. Similarly, the appellant testified that he was apologizing for hurting her emotionally and that his response had nothing to do with her comment about hitting her in the face.
Reasons of the Trial Judge:
19During closing arguments following the trial, counsel for the appellant (not counsel on the appeal) described the case as hinging on credibility and the W.(D.) analysis. Specifically, he argued that this case fell into the category in which the decision maker would be unable to resolve the conflicting evidence, and accordingly, there would be reasonable doubt as to the appellant’s guilt.
20In his Reasons for Judgment, the trial judge described the presumption of innocence and the standard of proof that the Crown bears of proving guilt beyond a reasonable doubt.
21At paragraph 20 of his Reasons for Judgment, the trial judge explained that “he said/she said” is an inapt way to describe criminal cases. He expressly recognized that there is not an “either/or” choice to be made. He stressed that an “either/or” approach where the trier of fact chooses between competing versions must be avoided. At the end of this paragraph, he identified that the issue before him was “not which version of the evidence is true, but rather, on the totality of the evidence viewed as a whole, whether the Crown has met its burden—proving the accused’s guilt beyond a reasonable doubt”.
22At paragraph 22, the trial judge discussed the application of the W.(D.) test. He stated as follows:
22Where credibility is a central issue in a criminal trial, which it is in most criminal trials, there is a relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard. That is where the case of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, comes into play. W.(D.) and its progeny prohibit triers of fact from treating the standard of proof as a credibility contest. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. And the findings of credibility on the part of the complainant is not sufficient to support a conviction where there is significant evidence which contradicts the complainant’s allegation. In assessing the credibility of any witness, including the accused, the existence of evidence that contradicts the witness is highly relevant. In the type of case that is before me, that necessarily means that the defendant’s evidence must be assessed in the context of and be weighed against the evidence of the complainant, and vice versa. Other factors are relevant as well, such as the demeanour of the witness while testifying, potential for bias, motive to lie, sincerity when testifying, for example, may come into play and influence the credibility given or attached to a witness.
(underlining added by me)
23It is the underlined portion of this self-instruction that the appellant takes issue with in the second ground of appeal.
24The trial judge’s credibility analysis of the complainant is found primarily at para. 24 of his Reasons for Judgment. It is clear that he found her to be both credible and reliable. It is also clear that he recognized that this was not conclusive of the appellant’s guilt. He again harkened back to W.(D.).
25In the next paragraph, the trial judge indicated that he did not find the appellant’s evidence credible nor reliable. He noted the simple denial of the allegations. He also indicates that he carefully observed the appellant while he testified and listened to and carefully considered his evidence.
26In paragraph 30, the trial judge stated as follows:
30In my view, if the complainant’s allegation are a fabrication, she would have come up with a better story than that which she testified. If the complainant wanted to make up false allegations against the accused, would she come up with a version that has her saying nothing to him about slapping her on the second occasion despite what she told him during the first incident. Would she come up with a fabrication that these events took place during consensual sex and foreplay? I think not. Why wouldn’t she simply accuse him of slapping her during an argument? Why risk being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments?
27The trial judge concluded that he accepted the complainant’s evidence and rejected the evidence of the appellant, and was not left in a reasonable doubt by his evidence. He was not left with a reasonable doubt when assessing the evidence he did accept. He was therefore convinced by the totality of the evidence of the appellant’s guilt.
28Accordingly, the appellant was convicted of the remaining two counts and received a nine-month conditional sentence, followed by two years’ probation.
Grounds of Appeal:
29The appellant raises three grounds of appeal, as follows:
(a) The trial judge improperly reasoned that the complainant was credible because she could have (but did not) make more serious or embellished allegations.
(b) The trial judge erred in his W.(D.) analysis and reversed the burden of proof by first finding the complainant credible without any consideration of the totality of the evidence, and then considering whether the appellant had “disrupt[ed] [this] finding”;
(c) The trial judge erred by failing to hold an admissibility inquiry and ultimately admitting and relying on presumptively inadmissible bad character evidence.
Standard of Appellate Review:
30A summary conviction appeal can only be allowed if:
(i) The verdict is unreasonable or cannot be supported by the evidence;
(ii) The trial judge erred on a question of law; or
(iii) There was a miscarriage of justice on any ground.
(Criminal Code, R.S.C. 1985, c. C-46, s. 822(1) and s. 686 (1)(a))
31A trial judge’s findings of credibility are not to be interfered with lightly and are entitled to a high degree of deference (see: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26). This is because the trial judge is able to see and hear witnesses at trial and appellate courts are not. “Rarely will the deficiencies in a trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”.
32It is a notoriously difficult task for trial judges to explain why they may find one witness credible and another incredible. In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, Bastarache and Abella JJ. explained as follows, at paras. 20-21:
20Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
21This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult an accused is entitled to know why the trial judge is left with no reasonable doubt.
33It is not the role of the appellate court to retry the case and substitute its view of the evidence for that of the trial judge.
34In R. v. G.F., 2021 SCC 20, [2021] 1 SCR 801, at para. 76, the Court reiterated that an appellate court should not scrutinize the text of trial reasons in search of an error, particularly in sexual assault cases where it is findings of credibility that are challenged. Furthermore, trial judges’ reasons must be read generously, as a whole, and with the presumption that the judge knows the law (R. v. G.F., at paras 69 and 74).
Ground 1: The trial judge improperly reasoned that the Complainant was credible because she could have (but did not) make more serious or embellished allegations:
35For this ground of appeal, the appellant relies upon R. v. Alisaleh, 2020 ONCA 597, R. v. Kiss, 2018 ONCA 184 and R. v. J.F., 2024 ONCA 457.
36In Alisaleh, the trial judge relied on the fact that in her view the complainant in that case had not embellished during her evidence. The Court of Appeal described, at para. 16:
16To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.); R. v. L.L. 2014 ONCA 892, at para. 2; R. v. G. (R.), 2008 ONCA 829, 243 O.A.C. 1, at para. 20. Our colleague Paciocco J.A. put it this way in Kiss at para. 52 (sic):
On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished her evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.
[Emphasis added by C.A. in Alisaleh]
37The Court of Appeal in Alisaleh, found that the trial judge was not simply noting that the complainant’s evidence did not suffer from a problem of exaggeration or embellishment that diminished its weight, but specifically described the lack of embellishment as being an important factor used to enhance the complainant’s credibility. The complainant in that case had other issues that diminished her credibility, including an admitted misrepresentation to the 911 dispatcher.
38As described in Kiss, at para. 52, both truthful and dishonest accounts can appear to be without exaggeration or embellishment. Thus, the absence of embellishment must not be used as a makeweight in determining a complainant to be credible.
39In R. v. Gerrard, 2022 SCC 13, [2022] 1 SCR 279, the Court noted that while lack of embellishment cannot be used to bolster the complainant’s credibility, it may be considered as a factor in assessing whether or not the witness had a motive to lie.
40Here, the Crown relies upon the following statement by the trial judge:
“I carefully listened to and observed the complainant during direct and cross examination. She did not embellish her evidence when there was an opportunity to do so. Far from it. She readily acknowledged the things she could not remember or be certain about. I found her manner of testifying as being consistent with someone who take care to present as accurate a testimony as she could. I accept her evidence as both credible and reliable…”.
41I agree with the Crown that had the trial judge left his comments about the complainant’s lack of embellishment there, he would not have engaged in the impermissible reasoning decried in Alisaleh and Kiss. At that juncture of his Reasons for Judgment, he had done no more than comment about the absence of embellishment as not detracting from her credibility.
42Unfortunately, it is my view that the trial judge went further when he continued at para. 30 by postulating that had her allegations been a fabrication, she would have come up with a better story than that which she testified. In so doing, the issue is whether this constitutes impermissible bolstering as described in Alisaleh.
43In considering paragraph 30 of his Reasons for Judgment, the last three lines of paragraph 29 should be considered too. The trial judge stated:
[29]…I do not accept the accused accusation, which is inferred from his denial that any striking of the complainant occurred, that the complainant fabricated three different scenarios on three different dates over a period of seven months.
44This lead-in to paragraph 30, in my view, indicates that the trial judge in paragraph 30 is responding to what he deemed to be an implied assertion that the complainant had a motive to lie. That could be a permissible use of the fact that a complainant has not embellished her allegations. However, importantly, the appellant had not argued that there was a motive to fabricate.
45The appellant argues that the Crown invited the trial judge to consider the complainant’s lack of embellishment as bolstering her credibility. In her arguments at trial, the Crown stated as follows:
“[The complainant] was clear sex was consensual. Kissing was consensual. Sexual touching over the clothes was consensual. Even with much follow up on questions as it relates to the choking, [the complainant] did not bolster her evidence with respect to that point to suggest that she suffered any more injury or any long-lasting injury or any form of unconsciousness. She testified in my respectful submission, to the truth.”
46I agree that this argument was not raised by the trial Crown in answer to an argument by the appellant’s that there was a motive to fabricate. It does appear to have been argued by the Crown that the lack of embellishment should be taken as a reason that the complainant should be believed.
47I agree with the submission of the appellant that the trial judge raised motive to fabricate on his own initiative. He took the appellant’s denial of the striking as an implied accusation of the complainant fabricating the event. However, this would be true in every case where there is a straightforward denial by an accused. This cannot, in my view, be used to provide a pathway by a trial judge to impermissibly use the lack of embellishment to bolster a complainant’s credibility. The issue is whether a motive to lie has been suggested. In this case, it was not.
48The appellant also argues that the trial judge’s comments following his discussion of the lack of embellishment expose a further error. He reasoned that she must not have fabricated the allegations because she would not wish to be scrutinized in a public trial and have to testify about consensual intimate moments.
49The appellant argues that the Crown invited this impermissible line of reasoning in her submissions when she argued:
“in assessing what may be plausible events, I ask Your Honour to consider why would [the complainant] report a sexual assault stemming from a two-minute missionary encounter on September 8th. In the totality of the circumstances Your Honour, and considering the evidence as a whole, I would suggest to the court that the inference that can be drawn is that she wouldn’t”.
50The Court of Appeal has made it clear that there are dangers in finding relevance in the fact that a complainant has exposed herself to the unpleasant rigours of a criminal trial. The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility because it has the effect of reversing the onus of proof. This is inconsistent with the presumption of innocence (see: R. v. J.C., 2021 ONCA 131, at paras. 88-89).
51However, I do not agree with the appellant’s position that the Crown’s argument went too far in this regard. Nonetheless, the trial judge does appear to have articulated improper reasoning as enhancing the complainant’s credibility.
52It must be noted that the trial judge provided other reasons for accepting the complainant as credible and reliable. He did so well before averring to her lack of embellishment and willingness to subject herself to the unpleasantries of trial. He described her as taking care to present her testimony accurately. He described her evidence as being “powerful” and had a “powerful ring of truth to it”. She was unshaken on cross-examination about the incidents.
53It is not my view that the complainant’s lack of embellishment was the sole or even most important factor in the trial judge’s determination that the complainant was credible and reliable. Unlike Alisaleh, supra, the lack of embellishment was not a makeweight in the trial judge’s credibility analysis. This is not a case like in Alisaleh, where there were apparent concerns with the complainant’s credibility and the trial judge utilized her lack of embellishment to overcome those concerns.
54In R. v. Jaraar, 2021 ONSC 8277, the trial judge had failed to resolve issues of concern with the complainant’s evidence and then seemed to restore her credibility by relying on her lack of embellishment. The trial judge in that case had used the lack of embellishment as a makeweight. Again, in the case at bar, on the record, there was no evidence that demonstrated any inconsistency with the complainant’s account.
55In J.C., supra, the complainant’s evidence had some inconsistencies, although the trial judge found that they were not in relation to the core allegations. The Court of Appeal found that the trial judge had relied upon stereotypical reasoning in addition to improperly relying on the complainant’s willingness to be subjected to the unpleasantness of a trial. While identifying the latter as an error, it was not the only basis for allowing the appeal but part of the constellation of errors that the Court described.
56Accordingly, while it is my view that the appellant’s arguments have merit, the use the trial judge made of the complainant’s lack of embellishment or his comments about subjecting herself to the unpleasantness of trial do not overcome the deference that findings of credibility by the trial judge are entitled to in the circumstances of this case. On reading the trial judge’s Reasons for Judgment as a whole, it is apparent that the complainant, in his view, was entirely credible without enhancing her credibility by improperly relying upon her lack of embellishment. Her credibility had been firmly established in his view. His view is entitled to deference.
57I reject this ground of appeal.
Ground 2: The trial judge erred in his W.(D.) analysis and reversed the burden of proof by first finding the Complainant credible without any consideration of the totality of the evidence, and then considering whether the Appellant had “disrupt[ed] [this] finding”:
58Trial judges are not required to slavishly follow the three-step W.(D.) analysis. The test is intended to articulate how the trial judge must apply the criminal standard of proof beyond a reasonable doubt where the accused testifies, or exculpatory evidence is adduced. The W.(D.) test ensures that the trier of fact does not convict an accused simply because he or she does not accept the defence evidence. There may be a reasonable doubt even if the defence evidence is not believed. W.(D.) is thus a critical part of criminal cases where findings of credibility may be determinative, by in fact, emphasizing that these cases are not credibility contests.
59It is presumed that judges both know the W.(D). test, and understand how to properly apply it. There is nothing wrong with analyzing a complainant’s evidence prior to analyzing the accused’s evidence (Gerrard, supra, at para. 2). Complainants invariably testify before an accused, should the accused choose to do so. Reviewing credibility in the same order as witnesses testified is not improper.
60The trial judge referred to W.(D.) specifically in his Reasons for Judgment and was clearly aware of the proper burden of proof that applied in “he said/she said” cases. He repeatedly described that it was not merely a credibility contest as between the complainant and the appellant.
61Unfortunately, he inserted language within his description of the W.(D.) test that suggested that the complainant’s evidence could only be overcome by “significant evidence” when he stated:
“…And the findings of credibility on the part of the complainant is not sufficient to support a conviction where there is significant evidence which contradicts the complainant’s allegation.”
62In isolation, the underlined portion of this comment suggests that the complainant’s credibility could only be shaken by “significant evidence”. This does imply that a judge need not consider less significant evidence that contradicts the complainant’s allegation. It may also imply that a judge could make a credibility finding without considering any evidence that contradicts the complainant’s allegation.
63Furthermore, the trial judge also omitted the third part of the W.(D.) test from his description of the analysis in this paragraph. The trial judge is required as part of the W.(D). analysis to determine whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence that he or she does accept.
64The appellant relies upon R. v. Ruthowsky, 2024 ONCA 432, where the Court of Appeal suggested that trial judges ought not to modify the primary instruction on the W.(D.) analysis. Importantly, Ruthowsky was a jury trial. The jury charge is the only instruction a jury receives on the analysis so there is a risk that a modified instruction will result in misapplication of the test. Given that juries do not give reasons, there would be no assurance that the test has been properly applied. In Ruthowsky, the Court of Appeal relied upon R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, another case involving modification of the W.(D.) instruction in a charge to a jury.
65In a judge alone case, it strikes me that there is more freedom to permit a trial judge to modify the description of the test, if it is otherwise clear that the trial judge properly applied the W.(D.) test. Both the appellant and the Crown agree that there is no “magic incantation” of words that must be used.
66Here, the trial judge, in para. 24, described accepting the complainant’s evidence as both credible and reliable. He then stated “But that is not the end of the matter. Acceptance of the complainant’s evidence does not automatically lead to finding the accused guilty….”. He was clearly alive to this aspect of the analysis.
67Critically important, is the trial judge’s summation at para. 32 of his Reasons for Judgment, where he states:
32After careful consideration of the totality of the evidence, I accept the complainant’s evidence and reject the evidence of the accused and I am not left with a reasonable doubt by his evidence. Nor am I left with a reasonable doubt when assessing the evidence I do accept. The totality of the evidence has left me convinced of the accused guilt. The accused will be found guilty on counts two and three.
68In my opinion, this summation adequately demonstrates that the trial judge properly applied the W.(D.) analysis, even if he imprecisely stated the test earlier in his decision. He was not left in doubt by the evidence of the appellant and was satisfied beyond a reasonable doubt of the evidence that he did accept.
69Upon reviewing the trial judge’s Reasons for Judgment as a whole, it is clear that he found that the complainant’s testimony was not shaken by any evidence. In other words, whether or not he incorrectly suggested that only “significant evidence” could contradict the complainant’s allegation, there was no evidence that he considered did so. The only exculpatory evidence was the appellant’s evidence, which the trial judge rejected. The findings regarding the complainant’s credibility and the appellant’s credibility were open to the trial judge and ought not to be lightly disturbed on appeal.
70Subsequently, the trial judge used the phrase “does not disrupt my findings.” The appellant argues that in doing so, he reversed the burden of proof. I set out his comments in their entire context, as follows:
26Defence counsel acknowledged the complainant’s evidence as generally impressive and compelling. He submits, so was the accused. Counsel argues both their evidence is reasonably capable of being true and therefore I should be left with a reasonable doubt concerning the accused’s guilt. He points to the complainant not being able to identify which hand she was struck with on Sept. 8th and regarding the Feb. 2nd incident, whether it was an open hand or closed fist. While that evidence certainly must be evaluated, it is done so within the context of the circumstances of the events. The complainant not being able to identify with certainty which hand she was struck with does not disrupt my findings that she was a credible and reliable witness. With respect to whether it was with an open or closed fist the complainant demonstrated what she believed was an open hand with perhaps curled fingers. While watching her and listening to her regarding that evidence, it was clear to me that she was not one hundred percent certain. That lack of certainty, when considering the context in which the strike occurred, does not cause me concern. For the most part, her evidence was very detailed and what you would expect from someone telling the truth.
71I pause to note that it is unsurprising that a complainant, who is engaged in sexual activity and is suddenly struck by her partner, may be unsure whether she was struck by an open or closed fist. That is clearly what the trial judge was describing by the “context of the circumstances of the events”. I do not take “does not disrupt my findings” to be a shifting of the burden. The trial judge was simply indicating that he had found the complainant credible and reliable during her testimony, and explaining why her inability to describe whether she was struck by a closed or open fist, did not change his view of her credibility or reliability. This was not a reversal of the burden of proof but was part of responding to arguments by the accused about the complainant’s credibility.
72It is now well established that the acceptance of a complainant’s evidence may be sufficient explanation for rejecting the evidence of an accused (see: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 2006 CanLII 4088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69). However, the trial judge in this case, did give reasons for rejecting the appellant’s evidence. He did not find the appellant’s explanation for not responding to the text messages and the reference to him having hit the complainant contained therein as credible.
73In my view, I am being asked to parse the trial judge’s reasons in search of error. I agree that he has included troublesome language, but I do not agree that he has improperly applied the W.(D.) analysis. He may not have specifically cited the third part of the test at the outset, but he properly applied the test in determining his verdict. He was entitled to be persuaded by the complainant’s evidence, after rejecting the evidence of the appellant, of the appellant’s guilt beyond a reasonable doubt. He did not reverse the burden of proof.
74I reject this ground of appeal.
Ground 3: The trial judge erred by failing to hold an admissibility inquiry and ultimately admitting and relying on presumptively inadmissible bad character evidence:
75The appellant argues that the trial judge relied heavily on the prior incident where the appellant had allegedly struck the complainant “very hard” in his Reasons for Decision and that this was prior discreditable conduct that should have been the subject of a bad character evidence application by the Crown. Evidence of prior discreditable conduct is presumptively inadmissible.
76The appellant further argues that the dangers of propensity thinking were not avoided in this judge alone trial because there is no indication within the trial judge’s Reasons for Judgment that he even applied his mind to this risk. As noted by Lauwers J.A. in R. v. J.W., 2022 ONCA 306, at para. 31, while judges can separate impermissible moral and reasoning prejudice from the task at hand, they must “actively advert to the very point in the moment of decision”.
77In J.W., Lauwers J.A. described that the exclusionary rule was expressed as follows by McLachlin J., in R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735:
“Evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect.”
78In the case at bar the prior incident was not tendered “solely to show that the accused is the sort of person likely to have committed” an offence. Rather, the Crown adduced the evidence for the clear purpose of establishing that the appellant had been told by the complainant that she did not consent to being struck during sexual activity.
79In any event, the Crown did bring a Seaboyer application at the outset of trial, for the purpose of adducing the evidence of the August 2021 incident. This application was not opposed by trial counsel for the appellant.
80The transcript shows the following Crown submissions:
“However, as I indicated in my materials, it is my respectful submission that the encounter does have some relevance as it relates to count two and three on the information. Specifically Your Honour, I outline in my materials at paragraph 16 of my factum the, essentially, three purposes for which reference to the incident that is currently reflected as being count one and may have some relevance where the probative value is not outweighed by the, any prejudicial affect.
In short, the first purpose would be to permit the complainant in discussing count two and three to refer to the sexual boundaries that she had set with [counsel’s] client in August of 2021, which is August 17 precisely would be the date that attaches to count one. It would, if your Honour permits this evidence to be heard, permit the complainant to provide Your Honour with an explanation or evidence on how she responded to the second allegation. And finally, should this gentleman testify, it would permit the Crown to cross-examine him on what if any knowledge he had of those boundaries.
Your Honour in my respectful submission, by permitting those narrow, a narrow discussion of the encounter, it would permit Your Honour to have the full context in order to, as the trier of fact, assess all the evidence….”
81Some further back and forth between the trial judge and counsel for both the Crown and the appellant took place and the Crown then added:
“It is not my intention to explore count one beyond essentially, establishing that the allegation is similar in nature and that there is an alleged strike of a sort and what if any comment or conversation followed.”
82The trial judge clarified as follows:
“Well, let me just make sure that I frame it in a way that counsel agree that I have what [Crown counsel] has said is accurate. Basically, what it comes down to is, [Crown counsel] only intends to have, in relation to count one, admitted into evidence whatever conversation took place about the alleged striking during that sexual activity?”
83Both trial counsel made clear their agreement to this approach. Nothing was said about this evidence also constituting prior discreditable conduct evidence.
84I agree with the Crown that it is problematic in those circumstances for the appellant to raise this issue for the first time on appeal. The Crown had specifically made the submission that the probative value outweighed the prejudicial impact of the evidence. While I do not view this as a tactical decision, as characterized by Crown counsel on this appeal, I am satisfied that there was an opportunity to raise a concern before the trial judge.
85In any event, I am not persuaded that the trial judge relied upon the prior incident as going to the issue as to whether or not the Crown had proved the two latter incidents beyond a reasonable doubt. There is no indication of propensity reasoning whatsoever in his Reasons for Judgment.
86Although I would not accede to this ground of appeal, I am persuaded that if the trial judge was in error on this ground, the curative proviso in s. 686(1)(b)(iii) of the Code should be applied.
87That section permits the appellate court to dismiss the appeal where, notwithstanding that the court is of the opinion that on any of the enumerated grounds the appeal might be decided in the appellant’s favour, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
88In R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310, the Court described that the question to be asked is whether “the verdict would necessarily have been the same if such error had not occurred” or “whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused”. The task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.
89In R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, 160 C.C.C. (3d) 1, two classes of errors were described—“harmless errors” or errors of a minor nature having no impact on the verdict; and “serious errors” that would justify a new trial but for the fact that the evidence was so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error (see also: R. v. A.M., 2024 ONCA 661).
90In respect of the failure of the trial judge, and both trial counsel, to consider whether the evidence of the August 2021 incident also constituted prior discreditable conduct, the test remains whether the probative value outweighs the prejudicial impact on the accused. I agree that the Seaboyer test is in a different context, but it does consider the same balancing act.
91In my view, if this were an error, it would constitute a minor error that had no impact on the verdict. This case was not determined on propensity reasoning. It was determined on the trial judge’s determination of credibility, a determination which is owed deference on appeal.
Disposition:
92I acknowledge that the trial judge’s Reasons for Judgment were imperfect. However, I am not persuaded that he erred such that his findings of credibility should be disturbed.
93For those Reasons, the appeal is dismissed.
Justice Spencer Nicholson
Date: April 7, 2025
CITATION: R. v. E.O., 2025 ONSC 2149
COURT FILE NO.: CR-505-23-AP
DATE: 20250408
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King
AND
E.O., Appellant
BEFORE: Justice Spencer Nicholson
COUNSEL: M. McLean for the Crown, Respondent
M. Halfyard and S. Bondoux for the Appellant
reasons on summary conviction appeal
Justice S. Nicholson
Released: April 8, 2025