Court File and Parties

Court File No.: CR-23-00000555-00AP

Date: August 5, 2025

Ontario

Superior Court of Justice

Summary Conviction Appeal

Between:

His Majesty the King

Enoch Guimond, for the Respondent

- and –

E.A.(J.)

Parmbir Gill, for the Appellant

Heard: January 6, 2025

Publication Ban

(Under s. 486.4 of the Criminal Code, there is a ban on publishing any information that could reveal the complainant's identity. This judgment conforms with this ban.)

Reasons for Judgment

(On appeal from the convictions entered on January 17, 2023 by Justice Jalali of the Ontario Court of Justice)

D.E Harris J.

Introduction

[1] The appellant, J.E.A., appeals his convictions for assault, sexual assault and sexual exploitation. The complainant was D.A. a developmentally delayed adult who functioned cognitively at the level of an 8-9 year old. D. worked for the appellant in the landscaping and snow plowing business between August 2015 and October 2018, the offence period particularized in the information.

[2] In the summers, D. worked up to six days a week, helping the appellant and the appellant's father J. cut grass, install interlocking brick and repair fences. In the winters he helped the appellant shovel driveways when it snowed. The appellant paid D. only sporadically. D. liked working with the appellant and J. and considered them friends.

[3] D.'s parents, C. and J.A. encouraged D. to work with the appellant. They wanted D. to stop "moping around the house" and do "something constructive" for which he would feel valued. J. A. described the arrangement as "volunteer work" and understood there was no obligation on the appellant's part to pay D. D.'s mother, C., did not really care how much the appellant was paying D. until late 2017 when the appellant began buying D. clothes instead of paying him.

[4] D. gave a statement to police that he adopted as his evidence in chief at trial pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46. In that statement, D. accused the appellant and his father J. of fifteen distinct assaults and sexual assaults, though he was often vague about when, where and how frequently they occurred. They included random assaults like punching D. in the ear and head and sexual assaults such as touching D.'s testicles and penis and making him masturbate.

[5] The accused did not testify at the trial.

Grounds of Appeal

[6] The main issue at trial was D.'s reliability and credibility. There was only limited confirmation for his evidence. On appeal, the appellant argues that the trial judge misapprehended evidence in respect of two distinct instances and failed to provide sufficient reasons for finding the appellant guilty.

[7] For the following reasons, I would allow the appeal and order a new trial.

The Misapprehensions of Evidence

First Misapprehension: The Sleepover Incidents

[8] The first misapprehension arises in this way. D. testified in examination in chief that he was assaulted in the appellant's truck and at various places where he worked with the appellant. Despite sleeping over at the appellant's home several times, he testified that he was never assaulted on those occasions. However, his mother C. said in her testimony that D. told her that the appellant fondled his private parts when he slept over at the appellant's home. She said that these sleepovers took place about three times a month in the winter.

[9] When the evidence of the prior statements of the complainant was first elicited from C. in the Crown's examination in chief, defence counsel rose to advise the trial judge that he did not object to the evidence going in but stated that the evidence was hearsay and therefore was not going in for its truth. The prosecutor did not explain the basis upon which she believed the evidence should be heard.

[10] In closing submissions, defence counsel argued as a main theme that there was contradictory evidence with respect to D.'s account. His evidence was unreliable and lacking in credibility. Amongst other examples, counsel specifically raised the discrepancy between D. and his mother with respect to whether there were sexual assaults against him while D. was sleeping over at the appellant's home. In her reasons for judgment, the trial judge addressed this issue, holding:

Mr. Sodhi [defence counsel] submits that there are too many inconsistencies in D.'s account and the Court should have concerns. Specifically, he points out that D. gave evidence on many issues that conflicted with the testimony of other Crown witnesses. For example, D. said in cross-examination that nothing had happened when he slept over at Mr. E.A.'s house, except for sleeping. Whereas C. testified that D. told her Mr. E.A. would fondle and touch his private parts on those occasions.

I disagree for three reasons. Firstly, D. never said, either in Court or in his videotaped statement that anything occurred while at Mr. E.A.'s house. He was consistent in that regard. Secondly, C.'s account for that incident is hearsay and I cannot attach any weight to it. Thirdly, in regard to minor inconsistencies, I'm mindful that D. worked with Mr. E.A. for a number of years and he recounted numerous incidents throughout those years. Given his mental capabilities, it is not surprising that he is unable to provide exact dates and specific details as to each incident.

[11] The appellant argues that the trial judge erred by misapprehending the evidence on this subject. As a consequence, the trial judge did not properly consider this discrepancy between the complainant's evidence and that of his mother. I agree that the trial judge erred. I would, however, characterize it as an error of law rather than a misapprehension of the evidence. The trial judge correctly stated the evidence but made legal errors with respect to how she approached it: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at paras. 83.

[12] The use of prior inconsistent statements is an everyday occurrence in the trial courts. Here, the prior inconsistent statement was a statement of the complainant to another witness, his mother. The trial judge disagreed for three reasons with the defence submission that D.'s statement to his mother undermined his credibility and/or reliability. With respect, those reasons were flawed.

[13] The first reason was that D. had never said in his evidence that anything had actually happened at the appellant's house. This was true but it was only one of the statements attributed to D. The other statement attributed to him by his mother C. was that sexual assaults and assaults had occurred at the appellant's house. The two statements—one from D. in court and the other out of court to his mother—were diametrically opposed and inconsistent with each other. This first reason given by the trial judge seemed to miss the statement to the mother, ultimately ignoring the inconsistency founded in the evidence and argued by the defence.

[14] The second reason given by the trial judge for her conclusion that this inconsistency was unimportant was that C.'s evidence that D. told her about abuse at the appellant's house was "hearsay and I cannot attach any weight to it." This was a legal error. Out of court statements are only hearsay if sought to be admitted for their truth as opposed to the fact they were said: R. v. Starr, 2000 SCC 40 at paras. 164-167. This prior inconsistency was not sought to be admitted for its truth. It was inadmissible for this purpose. Whatever the reason the Crown adduced it—and this was unclear—in the hands of the defence in his closing argument, its purpose was to demonstrate an inconsistency pertinent to D.'s credibility and reliability. This was a non-hearsay purpose for which the evidence was admissible.

[15] Prior inconsistent statements can be a powerful weapon in an advocate's arsenal. In R. v. Mannion, [1986] 2 S.C.R. 272, at pp. 277-278, the Supreme Court said:

It has long been well settled in the criminal law of Canada that the prior inconsistent statement of a witness, when put to the witness in cross‑examination, may be used by the jury in assessing the credibility of the witness but may not be used as evidence of the truth of the inconsistent statement. That is to say, the fact that the witness has made different statements on the same subject on an earlier occasion may afford evidence that the witness is unreliable but it does not afford affirmative evidence which can be weighed against the accused at his trial.

[16] Also see R. v. Scott, 2012 NBCA 21, at paras. 13-14.

[17] For the limited purpose of attacking credibility and reliability, C.'s evidence of a prior inconsistent statement was admissible and had to be considered by the trial judge. It was admissible for the fact it was said and to demonstrate inconsistency with what he said on the witness stand. It was, with respect, an error of law to conclude that it was of no weight.

[18] This second reason stated by the trial judge may shed some light on her first reason for disagreeing with the defence position. If classified as hearsay, it was not admissible evidence and did not register. There was no need to consider it. That may explain why the trial judge in her first reason only referred to what D. said on the witness stand and not to the mother's evidence. But that misconstrued the non-hearsay purpose of the evidence.

[19] The third reason was that with respect to "minor inconsistencies", D. worked with the appellant for a number of years and recounted many incidents over those years. Given his limited mental capacity, it was not surprising that he could not remember exact dates and specific details as to each incident.

[20] I do not see that this was a completely accurate characterization of the issue. The issue of whether there was abuse at the appellant's house was not a minor inconsistency nor was it about dates or about specific details either. The issue was not about differences in dates nor about what happened. It was about whether anything happened in a particular place.

[21] However, if the trial judge's only reason to reject the defence submission was this third reason, the concerns would be significantly diminished. Although the trial judge did not articulate the problem with precision, it was a real possibility that given D.'s disability, he may have told his mother about abuse at the appellant's home but then subsequently forgotten about it by the time of trial. That would not be unusual with a child's evidence, as D. was functionally. The problem is that the first and second reasons for dismissing the defence argument constituted an error of law and demonstrated that the trial judge was giving the prior inconsistent statement no weight.

[22] In my view, as argued by the Crown, the resolution of this error is dependant on the curative proviso. At the least, errors were made with respect to the first and second reasons for giving the inconsistency no weight. The appellant has established an error of law and the question remaining is whether despite the error there has been no substantial wrong or miscarriage of justice under s. 686(1)(b)(iii) of the Criminal Code. I will address this after discussing the appellant's remaining complaints.

Second Misapprehension: The Sandra Valvert Evidence

[23] The second misapprehension argued by the appellant also involved prior statements and was the type of factual misapprehension of evidence referred to in the case law. It involved the evidence of Sandra Valvert, a person who was D.'s babysitter—akin to a social worker. He would see her frequently at least during some parts of the year. She worked with D. intermittently throughout 2017 to 2021. D. testified that he told Ms. Valvert in 2017 and 2018 that the appellant was "doing something wrong to him" and forcing him to work. He also testified that he told her just before trial in 2021 that the appellant was "touching his nuts and my balls."

[24] The defence called Ms. Valvert as a witness and she was clear in her evidence that D. never complained to her at any time about anything remotely similar to what D. had testified. D. said he was happy working for the appellant. They had a good relationship she concluded from what D. said. She never heard anything "bad or wrong." If D. had complained about anything, Ms. Valvert would have told D.'s parents immediately.

[25] Defence counsel relied on Ms. Valvert's evidence to challenge D.'s reliability in his argument. The trial judge's treatment of this issue appears towards the end of her reasons:

Defence submits that Ms. Valvert was in the most objective position of all of the witnesses in this case. D. testified that he told Ms. Valvert that he did not wish to work with Mr. E.A., that he was forced to do so. Ms. Valvert, however, denied that Diego had disclosed this to her. In fact, she stated that D. was happy to go to work with Mr. E.A. She believed they had a brotherly relationship, and she never saw the defendant being mean to D.

Basically, Mr. Sodhi submits that Ms. Valvert would see D. two to three times per week and was in the best position to observe or be told about any of the abuse D. was suffering. Counsel submits that Ms. Valvert's testimony supports that D. did not have any issues while working with Mr. E.A. I disagree. Though D. said he told Ms. Valvert that he did not want to go to work with Mr. E.A., there is no evidence of when he told her that. It could have been after the incident came to light.

I accept that Ms. Valvert worked with D. from 2017 to 2021 as she described it. The question asked of Ms. Valvert, as the Crown points out, was very specific about the timing being in 2017 to 2018, which was before the alleged incidents came to light. I agree with Ms. Ida that the period D. told Ms. Valvert he did not want to go to work with Mr. E.A. is incredibly important and yet, it is missing from the evidence.

[26] I agree with counsel for the appellant that the trial judge misapprehended the evidence. In its most basic form, D. said that he had complained to Ms. Valvert about the appellant, including alleging that he was being forced to work, that he was doing something wrong to him, and had touched his penis and testicles. But in her evidence, Ms. Valvert denied that D. had ever said anything of the kind. This was not confined to a particular time period. Rather, to the contrary, it was Ms. Valvert's evidence that she gathered from D.'s comments that he was happy with the appellant and nothing improper had occurred.

[27] There was a stark contrast between the two versions. The trial judge seized on the dates of the complaints to Ms. Valvert and held that this explained the discrepancy. But the dates were very much secondary. Reduced to its essence, D. testified that he had complained to Ms. Valvert at some point; Ms. Valvert denied that this ever occurred. No complaint was ever made. Reference to the dates was of little importance when D. said he had complained and Ms. Valvert denied that he had.

[28] This was a misapprehension of evidence as identified in the cases: see Morrissey, at paras. 83, 94, 97; R. v. Lohrer, 2004 SCC 80 at para. 1. The net effect, like the legal error already discussed, was to fail to recognize what was a basic inconsistency. The consideration of the effect of this error can await the conclusions at the end of these reasons.

Insufficiency of Reasons

[29] The appellant's third ground of appeal is that the trial judge's reasons were insufficient in addressing inconsistencies in D.'s evidence. The main defence theme in this trial was that the evidence of D. could not be relied upon to prove the Crown's case. The principal reason cited by the defence was inconsistencies between D.'s evidence and that of other witnesses. Both errors discussed above with respect to inconsistencies were prominent examples of this.

[30] The insufficient reasons ground of appeal, like the other two complaints, also draws on a failure to recognize inconsistencies in D.'s evidence. In this instance, the appellant's complaint is not errors with respect to the approach to the inconsistencies or erroneously failing to recognize inconsistencies but rather a failure in the reasons to consider them at all.

[31] Defence counsel in both written and oral submissions argued that the there were internal and external inconsistencies, in particular with respect to D.'s first disclosure of the abuse to his mother. Besides the inconsistencies considered already, there were also other less important inconsistencies argued too.

[32] In his statement to the police, D. said that the complaint to his mother was in 2018. When he testified in chief at the trial, he said he told her in 2015 but she did not believe him. He continued to tell her in 2016 and 2017 but she still did not believe him. Later in-chief he said that he told his mother in 2015 that the appellant was throwing rocks at him. He did not remember what he told her in 2016 and 2017 because it was so long ago but in 2018 he told her that the appellant was touching him inappropriately. In summary, the evidence of when he made the complaints to his mother was inconsistent across his evidence in chief.

[33] In cross-examination, D. said again he had told his mother in 2015 about inappropriate sexual behavior by the appellant. Later in cross-examination, D. said he disclosed the sexual assaults to his mother in 2018 after she became upset at the appellant for not paying him. He repeated this in re-examination. D.'s mother, C. testified that she was sure that it was not until October of 2018 that D. revealed any physical or sexual abuse having been committed on him by the appellant.

[34] This subject was relied upon by defence counsel in written submissions. Crown counsel responded at some length in her oral submissions. The trial judge in her reasons for judgment did not examine these inconsistencies or, in fact, any inconsistencies other than the two discussed above. She did refer to case law making the distinction between minor consistencies and major ones. She cited R. v. B. (G.), [1990] 2 S.C.R. 30, for the common sense proposition that the perception and recollection of children cannot be evaluated using the same standards as for adult witnesses.

[35] The trial judge, in summarizing D.'s evidence, did note the different and inconsistent statements with respect to the first complaint to his mother and whether this was made in 2015 or 2018. She returned briefly to this subject in reviewing C.'s evidence.

[36] The appellant is correct that the inconsistency with respect to when the complaint was made to D's mother, although mentioned, was never addressed or resolved. In light of this, in the context of the insufficiency of trial reasons case law, it has to be asked whether, as an appellate court, the trial judge's reasoning can be determined with reasonable certainty? If the appellate court can determine the trial judge's path through the evidence even if it was not articulated, the reasons can be deemed sufficient: R. v. Sheppard, 2002 SCC 26, at para. 55; R. v. Dinardo, 2008 SCC 24, at para. 32.

[37] Were it a straight case of the complainant saying he complained to his mother in 2015 at the beginning of the offence period and his mother saying it was not until 2018 at the end, the reasoning of the trial judge would be relatively obvious. Any mother would have contacted the police as soon as she found out about the allegations against her disabled son. It was reasonable to conclude on this basis that her evidence as to the timing was reliable and that the complainant's was not. It could be presumed that the trial judge followed this reasoning but without articulating it.

[38] But the actual evidence had one other aspect to it which must be factored in. The complainant said that when he complained well before 2018, he was not believed. It was arguable that the mother, out of guilt or shame, may have testified that the complaint was not in 2015 or 2016 but not until 2018. It took her some time before she believed her son. This could have explained the discrepancy between their evidence. The conflict was capable of being resolved in the Crown's favour but the uncertainty leads to some hesitancy in filling in the trial judge's reasoning. In any case, as I will explain, I do not need to come to a firm conclusion with respect to this ground of appeal.

Conclusion

[39] This was a case which, by virtue of the evidence and the position of counsel, the trial judge was obligated to address in some fashion the inconsistencies in the complainant's evidence. Not every inconsistency had to be examined but there was a requirement to at least deal with some of the major ones: R. v. J.L., 2024 ONCA 36, at para. 39. Counsel for the appellant quite rightly concedes that the situation was not "intractable." As the trial judge repeatedly emphasized, the case law recognizes that it is important to recognize a child's different perspective. Inconsistencies particularly with respect to dates and problems with memory recall may well be explainable based on a child's psychology. But an analysis in this case was nonetheless required to consider the effect of the inconsistencies on credibility and reliability.

[40] With one exception which I will consider in a moment, because of the error of law and the misapprehension of evidence, the trial judge failed to wrestle with the inconsistencies in the complainant's evidence. She erroneously held that one inconsistency was hearsay and entitled to no weight and in respect to the other, misapprehended the evidence and did not recognize the inconsistency. With respect to the insufficient reasons ground, its only importance is to highlight that in the end, the trial judge failed to deal with any of the inconsistencies raised by the defence.

[41] Nothing the trial judge said in her reasons substituted for an analysis of the inconsistencies. In her reasons, the trial judge agreed with counsel that the central issue was the credibility of D. The trial judge rejected that D. had a motive to fabricate and found him to be an honest witness. He did not exaggerate his evidence and did not make gratuitous comments about the appellant. The trial judge then said:

While demeanour evidence should be approached with caution because it cannot support a finding of guilt on its own, in general I found D.'s responses to be thoughtful and careful. He was forthright and candid and did not switch his answers to conform to the evidence. He gave a detailed and consistent account of what happened to him. D.'s version alone makes sense. His evidence, as the Crown pointed out, is internally consistent and has a logical flow.

[42] With respect, this passage does not alleviate the problems. The demeanour conclusions have at best limited weight. Conclusions that D. was "thoughtful" and "careful" and his evidence had a "logical flow" do not significantly contribute to the findings of guilt. The conclusion that D. gave a "consistent" account was inaccurate. The reference to "internal consistency" was somewhat besides the point. There were external inconsistencies based on other witness' evidence. These comments if anything reinforce the conclusion that the trial judge failed to come to grips with the inconsistencies in the complainant's evidence.

[43] The one exception to the failure to grapple with the inconsistencies is the trial judge's third reason for why the inconsistency between D. and his mother was of no weight. It was posited that due to his mental capacity, D. had difficulties with times and specific details. Strictly speaking, whether he was abused at the appellant's home or not does not fall neatly into this category. Nor, arguably, was the trial judge correct in calling it a minor inconsistency. The bigger problem, however, is that after the legal error in mischaracterizing the evidence as hearsay, this third reason appeared to be more of an afterthought.

[44] Weighing the importance of the misapprehensions in context as instructed by the case law, the inconsistencies raised an issue of substance and were central to the resolution of this trial: Morrissey, at para. 93; Lohrer, at para. 2. The only indication that the trial judge examined the inconsistencies, amongst an error of law and a misapprehension of evidence is her third reason. It was flawed in itself. And furthermore, it was insufficient to demonstrate that she had satisfactorily grappled with the issue.

[45] Taking the error of law and the misapprehension of evidence together under s. 686(1)(a)(iii) and under s. 686(1)(b)(iii) of the Code, the ultimate issue is whether a miscarriage of justice has been occasioned: Morrissey, at para. 88. In my view, there has been a miscarriage of justice brought about by the ultimate failure to consider the inconsistencies in D.'s evidence. The legal error, the misapprehension and the ultimate failure to consider any inconsistencies, rendered this trial unfair.

[46] The situation is analogous to that in R. v. R.E.M., 2008 SCC 51, at para. 55, where the court said:

[The appellate court] must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions.

[47] With respect, in my view the trial judge did not recognize or deal with the inconsistencies or contradictions in this case. For these reasons, the appeal is allowed, the convictions set aside, and a new trial is ordered.

D.E Harris J.

Released: August 5, 2025