Court File and Parties
Court File No.: SCA(P) 324-24 Date: 2025-08-05 Ontario Superior Court of Justice Summary Conviction Appeal
Between: His Majesty the King, Respondent – and – Gurpreet Singh, Appellant
Counsel: Sara Wilson, for the Crown / Appellant Robert Nanni, for the Respondent
Heard: April 3, 2025
Restriction on Publication
By court order made under subsection 486.4(2.2) of the Criminal Code, information that may identify the person under 18 described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Reasons for Judgment
On Appeal from the Judgment of Justice E. Allen, dated April 3, 2024
J.M. Woollcombe J.
Introduction
[1] The appellant was charged with sexual assault and sexual interference in relation to one incident with the same complainant, C.E., alleged to have occurred on July 30, 2022. The allegation was that while C.E. was standing in a wave pool with her friends, the appellant came from behind, put his arm between her legs and touched her genital area over her bathing suit for 5-10 seconds.
[2] The trial proceeded before Allen J. for one day on March 7, 2024. The following day, His Honour provided oral Reasons for Judgment, and found the appellant guilty of both counts. He appeals his conviction.
[3] The appellant makes three arguments:
a. It is submitted that the trial judge gave insufficient reasons for his conclusion that the Crown had proven that he had the requisite mens rea for the offences;
b. It is further submitted that the trial judge erred in two respects relating to the post-offence conduct:
i. First, he did not edit the videotaped statements of the two children that were admitted under s. 715.1 so as to limit them to what is said to have been "the acts complained of", resulting in improperly admitting their evidence of post-offence conduct;
ii. Second, he failed to consider "other reasonable inferences" for the post-offence conduct, reversing the onus of proof; and
c. The trial judge erred by engaging in a credibility contest between the Crown witnesses and the appellant.
[4] Assessing the grounds of appeal requires consideration of the evidence adduced at the trial, and the positions taken by the parties.
Relevant Evidence
[5] The Crown called three witnesses in support of its case: the 13 year old complainant C.E., her 14 year old friend, Z.C. and Andrew Varkey, who worked as a summer student at the water park in the security department at the time.
[6] Both C.E. and Z.C. gave videotaped statements to police after the incident. On consent, their videotaped statements were played in court when they testified. Each adopted the contents as true and the statements were entered into evidence as trial exhibits and admitted as their evidence, pursuant to s. 715.1. The complainant's statement was made on July 31, 2022, the day after the allegations. Z.C. gave her statement on August 11, 2022.
[7] The defence conceded that the appellant is the person that the complainant confronted about the incident in the pool. Identity was not an issue.
[8] The waves in the wave pool are on a timer. At times, there are no waves. Then, an alarm rings and everyone starts running to the wave pool. The waves then begin.
[9] C.E.'s videotaped statement was her evidence in chief. It was slightly augmented when she testified. In her evidence, C.E. explained that she had been at a waterpark with a group of 5 or 6 friends. Before the touching, C.E. was in the wave pool, standing up normally in water that was up to her waist. The waves had been turned off. She described the pool as not having been that crowded and confirmed under cross-examination that there had not been a lot of people.
[10] C.E. said that a male came up behind her and put his arm in between her legs. She did not see him before he did this. She described him as having touched her "private part", over her swimsuit, for 5 to 10 seconds. Under cross-examination, the complainant testified that when his arm was between her legs, she was able to see his hand, which was open, with his palm facing up.
[11] C.E. described how she turned around and that as she did so, he pulled his arm back and she looked at him. She described him as standing up straight and smirking. C.E. recalled the male said, "my bad". He also kept saying that he had thought she was his daughter. C.E. agreed under cross-examination that it was possible that it had been the male's friends who told her that she looked like his daughter. C.E. told her friend that the male had touched her. She and her friends started yelling at him and asking why he did that.
[12] Z.C.'s evidence was very similar, though she said that there had been a lot of people in the pool. She was also clear that when the incident occurred, the waves had been turned off. She described the water as having been at her chest or belly. Her evidence was that when they were in the wave pool, her friend B. said, "look", and she turned to see that a male had his hand through C.E.'s legs. She described his hand as actually touching C.E. She said that C.E. turned and asked him "what the hell" he was doing and "why are your touching me like that?" Like C.E., she said that the male was smiling. She said that they all started yelling at him and asking why he was touching a little girl like that. He was with two friends, other men, who were saying that it was ok.
[13] The appellant's description of what happened in the wave pool was very different from the evidence of C.E. and Z.C. He testified that in the wave pool, the waves were coming from the side. He said he closed his eyes and dove into the water. He was pushed by the waves and went backwards and his hand hit somebody. He testified that when he got up and took his face out of the water, he saw a girl standing there and saying something to him, which he did not understand (as he said he does not speak English). His friend told him that she was saying that he touched her. He said that he immediately said to her that he was sorry and that whatever had happened had been an accident. [1] Under cross-examination, the appellant clarified that when he was under the water, he felt his hand touch someone. At one point, he said that he felt that his "right hand hit this hand". At another point he said that "it felt like it hit someone". At no point did he say that he touched C.E.'s vaginal area. In fact, he said it was not a brush or a touching and that his hand "just hit someone there".
[14] During the appellant's testimony in chief and while under cross-examination, a videotape of the surveillance recorded at the wave pool was played. The appellant identified himself as entering the pool and testified using the time stamps on the bottom of the video. He can be seen walking out into the pool at a point that the waves were not running. At 15:11, the waves started. People appear to be playing and jumping in the waves. By 17:14, the appellant agreed that the waves had stopped. In fact, counsel for the appellant submitted in his argument that the waves had stopped by 17:05. The appellant was not able to see himself on the video at 18:11. He is visible on the video walking out of the pool as of 18:30. He identified himself walking out of the pool, around to the right side where there were yellow and blue umbrellas, and over to the white chairs. On this testimony, he was in the pool after the waves had stopped between 17:05 and 18:30.
[15] C.E. testified that the male ran out of the pool. She thought he was trying to run away as he left the pool quickly. She and her friends also got out. Z.C.'s evidence was similar. She said that the male got out and that the girls then got out. They were trying to talk to him and telling him that they were going to tell their parents. Both girls described there having been police officers by the wave pool who had not been receptive to hearing from the girls what had happened. The officers asked if she had told security and told her to go and get the guy.
[16] The video clearly depicts that at 20:24, a group of girls approach and speak to two police officers who appear to be walking past the end of the pool. They then speak to two people who appear, from their uniforms of red shorts and matching black t-shirts, to have been lifeguards.
[17] C.E. said that she and her friends were looking for the person who had been in the pool and that they then saw that he had changed his clothes. He was wearing a yellow shirt and dark green shorts with white stripes on the side. She said that she and her friends yelled at him to stop and that he ran away as soon as they yelled. She described how the lifeguards chased him down. Once he was stopped, she saw that they had the man who had touched her in the pool.
[18] The appellant's evidence was that "when the crowd gathered", his friend said that he should leave and so he went and sat near where their clothes were. He said that he stayed there for between two and five minutes and that when the crowd came towards him, he got scared. He started running and they ran after him. He denied that he had been smirking or smiling at C.E. He also denied having said to C.E. that she was like his child and testified that he had said to his friend that she was like his daughter to him and that he could not think of her in a sexual way. He agreed that he did not have a daughter of a similar age as he did not have a daughter in 2022.
[19] The appellant was cross-examined about his evidence that he had been scared when he was out of the pool and that this was the reason why he ran. He testified that back in his home country, "they start beating like that". Asked if 11 year old girls do so, he said no, but that when a group gathers like this, and chase, it can be frightening. It was suggested to him that there were girls approaching him with some lifeguards and he said that what he saw was "the crowd". While he agreed that he had heard Mr. Varkey tell him to stop, he said he was scared of the crowd. He said that he knew he had done nothing wrong because his hand had accidentally touched C.W., but that he ran.
[20] Mr. Varkey's evidence was that as he returned from a break, he saw a male run past him. He then saw a lifeguard coming and heard him say to stop that guy. He confirmed which person was being referred to and the said girls were running and telling the male to stop. He then turned and started to chase the individual, who was running toward the exit. Mr. Varkey was able to catch him. He asked him what had happened and what he had done. The male said he had not done anything, Mr. Varkey called his supervisor, the head of security, who called police.
[21] At the conclusion of the trial, Crown counsel urged the trial judge to find that the complainant and her friend were credible and they were not seriously challenged under cross-examination. The Crown submitted that the video showed the waves stopping and that there was ample time for the sexual assault to have taken place after that, before the appellant can be seen leaving the pool. The Crown also argued that the fact that the appellant ran was consistent with him knowing that what he had done had not been an accidental touching, but a sexual touching.
[22] Counsel for the appellant submitted that what had occurred was as the appellant described: that he had dived into a wave and accidentally bumped into the complainant. It was the defence position that because the video depicted that there was a small window of time from when the waves stopped to when the appellant left the pool and that did not seem like there was sufficient time for the touching to have occurred and for the conversation that was described to have happened after the waves had stopped. It was argued that this made the appellant's version of events that there were waves going and that he was jumping in them credible.
[23] In his submissions, counsel for the appellant conceded that if what the complainant said was believed, then the appellant's conduct amounted to a sexual assault.
The Trial Judge's Reasons for Judgment
[24] In his brief oral decision, the trial judge summarized the evidence of C.E., noting that her friend Z.C, had largely corroborated her version of events, including that while in the wave pool, with the waves stopped, the appellant had come up behind her and put his arm between her legs and touched her with his hand in the vaginal area while his palm faced upwards. He noted that the complainant had described the appellant as having been smirking and that when they called out about what had happened, the appellant left the pool and was stopped shortly after by a pool staff member.
[25] The trial judge then noted that the appellant's version of events differed "starkly" from the girls' evidence. He summarised that the appellant had described the waves being on and diving into the wave with his eyes closed and feeling his hand brush against someone.
[26] The trial judge self-instructed on the onus and burden of proof, as well as the principles in D.(W.).
[27] When he turned to his factual findings, the trial judge stated that he did not believe the appellant. He rejected his evidence for two reasons. The first is that the appellant ran away and claimed to have an innocent explanation, which the trial judge rejected. The second is that he found the evidence of the girls to be compelling.
[28] The trial judge found that this was a case in which either he was satisfied beyond a reasonable doubt by the version of events given by the complainant and her friend, or he was left in a state of doubt by the appellant's evidence that there had been accidental touching when he brushed up against the complaint in the waves. Even without considering the fact that the appellant's version of an "accidental touching" had not been put to the complainant, the trial judge found that the complainant's evidence made clear and that she knew that it had not been accidental. Once he was satisfied that the touching was C.E. being "groped in a still pool by a man who then smirked at her", and not accidentally touched, the trial judge found the appellant guilty of both counts.
Analysis
i) Whether the trial judge gave insufficient reasons for his conclusion that the Crown had proven that he had the requisite mens rea
[29] The appellant submits that the trial judge fell into error by failing to explain why he was satisfied beyond a reasonable doubt both that the appellant intended to touch the complainant (the mens rea for sexual assault) and that he intended to touch the complainant for a sexual purpose (the mens rea for sexual interference).
[30] While the importance of trial reasons should not be understated, on appeal, the issue is whether there was reversible error. Reasons are to be assessed in the context in which they were given. Appellate review must involve a functional and contextual reading of the trial judge's reasons that are said to be insufficient. The task is not to finely parse the reasons in search of an error. It is to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: R. v. G.F., 2021 SCC 20, at paras. 68-69.
[31] Reasons must be factually and legally sufficient. Factual sufficiency is about what the trial judge decided and why. Legal sufficiency is highly contextual and must be assessed in light of the live issues at trial. Trial judges are not required to expound on features of criminal law that are not controversial in the case before them. If the legal basis for the decision can be discerned from the record, in the context of the live issues at trial, then the reasons are legally sufficient: G.F., at paras. 71-75.
[32] This was not a complicated case. It was conceded that the complainant had been touched in some matter by the appellant. She testified that while the waves in the wave pool were stopped and as she was standing in the pool, the appellant put his arm between her legs and touched her vaginal area over her bathing suit. Her friend Z.C. testified that she saw this occur and that it was at a time when the wave pool was still. The appellant's evidence was that while the waves were being generated, he dove into the water with his eyes closed and accidentally touched the complainant with his hand.
[33] The crux of the defence was that the touching of the complainant was an accidental touching, caused by the waves. The defence position that there was insufficient time for this to have occurred after the waves stopped was much debated with the trial judge in the submissions, bearing in mind the video. Ultimately, the parties seemed to agree that there was a period of about a minute and a half between the time the waves stopped and the appellant left, ample time for the incident described by the girls to have occurred.
[34] Counsel for the appellant agreed with the trial judge that if he accepted the version of events provided by the girls, this was a sexual assault. In other words, he accepted that if the trial judge were to find that there had been touching of C.E.'s vaginal area as she described, it had been intentional.
[35] There was no suggestion at trial that the appellant's conduct, if intentional, was for a non-sexual purpose. The parties and the trial judge all proceeded on the basis that if the touching was intentional, it had been for a sexual purpose.
[36] In advancing his position that the trial judge's reasons are deficient for their silence on a critical element of the offences, the appellant places reliance on the Court of Appeal decision in R. v. N.C., 2024 ONCA 239, at paras. 10-11. In that case, the appellant argued that the trial judge had failed to turn his mind to the mens rea requirement of sexual assault and had failed to make any finding that the Crown had proven the mens rea.
[37] With respect, I do not find that case assists the appellant. In N.C., while the case was about the complainant's consent, the Court of Appeal noted that the defence did not concede that the appellant had knowledge of the complainant's lack of consent and concluded that the trial judge failed to grapple with the appellant's evidence or make a finding of fact that there was no air or reality to the mistake of fact defence.
[38] By contrast, in this case, the only issue was whether the trial judge had a doubt about the touching having been accidental, rather than intentional. But, counsel conceded that if the act described by the girls was accepted, there was no question that what had occurred was a sexual assault, effectively conceding that in those circumstances, there was no genuine issue on the question of intent.
[39] In my view, the trial judge's reasons are factually and legally sufficient in the circumstances of the case. While the trial judge did not expressly address the appellant's state of mind, given the issues in the case, there was no need to do so. The trial judge accepted the evidence of the complainant and Z.C. that while the waves were stopped, the appellant put his arm between C.E.'s legs and touched her vaginal area. He rejected the appellant's evidence that the touching was accidental and as a result of him diving into the moving waves. There was never any suggestion that the appellant had not touched the complainant's genital area with the waves stopped as she described, it could have been unintentional and not for a sexual purpose. Given counsel's concession that acceptance of the complainant's evidence would mean that there had been a sexual assault (and thus that mens rea would be established), the trial judge was not required to say more. It is self-evident that he was satisfied beyond a reasonable doubt that the appellant's touching of the complainant's vaginal area was intentional and for a sexual purpose.
ii) Whether the trial judge erred in two respects relating to the post-offence conduct
[40] The appellant makes two arguments in relation to post-offence conduct.
Should the s. 715.1 videotape statements have been edited by the trial judge to exclude what is said to be post-offence conduct?
[41] The appellant says that the trial judge failed to limit the evidence in the two videotaped statements of the girls to "the acts complained of", and that he should have edited the statements to exclude the post-offence conduct.
[42] Section 715.1 provides that:
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
[43] Section 715.1 permits the reception of a videotaped statement of a complainant or witness who is under the age of 18 at the time the offence was committed, as long as statutory requirements are satisfied. While s. 715.1 permits the introduction of evidence to the extent that the witness "describes the acts complained of", references to other conduct not encompassed by the indictment, or to conversations that form no part of the acts complained of, are not made admissible by this section: R. v. J.A.T., 2012 ONCA 177, at paras. 146-147.
[44] In R. v. Scott, 87 C.C.C. (3d) 327, the Court of Appeal explained that while the contents of the videotaped statement tendered under s. 715.1 must be limited to "the acts complained of", it may include more than the "bare physical acts constituting the assault" as it must allow the complainant to give his or her version of the events underlying the charge before the court. Writing for the Court, Doherty J.A recognized that "acts complained of" can also include the complainant's description of his or her attacker or the naming of the attacker if she knows the name.
[45] There is no question that judges have the ability and responsibility to edit s. 715.1 statements so as to ensure that they do not contain evidence that would be inadmissible if offered by the complainant during his or her evidence. For instance, inadmissible hearsay, or inadmissible bad character evidence, does not become admissible because it is in a videotaped statement: R. v. T.(W.P), at paras. 56-57.
[46] In this case, the appellant does not say that the trial judge should have edited the statements of the girls because they contained evidence that was otherwise inadmissible. Indeed, no argument has been made that the post offence conduct was inadmissible. Rather, the argument advanced is that because the statements included evidence beyond the bare allegations, it ought to have been edited so as to confine what was admitted in the statements to the evidence of the acts complained of.
[47] I do not accept the appellant's argument.
[48] First, I observe that counsel at trial, against whom no allegation of ineffective assistance has been made by the appellant, raised no objection to the admission of the entire videotaped statements of either C.E. or Z.C. pursuant to s. 715.1. Counsel had those statements and had the transcripts of what the girls had said. Absent any concern being raised by the defence prior to the videotaped statement being played, the trial judge had no reason to consider editing the statements in advance of them being played. Even after they were played, counsel raised no concern that any part of either statement was inadmissible.
[49] Second, while the complainants both spoke in their videotaped statements about the events immediately following the allegation, their evidence was truly confined to what happened in the period of less than 30 minutes after. This was not a case like J.A.T., in which post offence conduct that occurred months later was improperly admitted in the statements. All that was included was the evidence as to how it came to be that the appellant was stopped and arrested. I see the evidence as very closely related to what happened in the wave pool. It was, effectively, part and parcel of "the acts complained of" in that it included the appellant's attempt to flee and the chronology as to how he was stopped and identified by the girls.
[50] Third, it was uncontested that the alleged post offence conduct of the appellant was admissible. It is noteworthy that the defence made no objection to the evidence of Mr. Varkey, whose evidence related only to the after the fact conduct.
[51] Fourth, assuming that the post offence conduct evidence was admissible, its admission through the videotaped statements in no way impaired the ability of counsel for the appellant to challenge C.E. and Z.C. on the content of what they said happened immediately after the incident in the wave pool. I do not accept the defence claim of there being prejudice because the girls were not compelled to testify in chief about what happened in the minutes immediately after the allegation in the lead up to the arrest, an area in which inconsistencies could have been generated. There was a fulsome opportunity afforded to the defence to challenge both girls' testimony.
[52] Finally, even if the appellant's argument is correct in that counsel should have argued for editing of the statements, I see no prejudice to the appellant by the trial judge's failure to edit either of the statements. It remained open to counsel to cross-examine and challenge the girls on any aspect of their evidence. I am persuaded that if there was an error in the trial judge not editing either statement, it occasioned no harm or miscarriage of justice.
[53] This ground of appeal must be dismissed.
Did the trial judge fail to consider "other reasonable inferences" for the post-offence conduct, thereby reversing the onus of proof?
[54] Post offence conduct is circumstantial evidence. An inference of guilt from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference in the totality of the evidence. In considering whether the Crown has met its burden of proof in a circumstantial evidence case, the must be consideration of whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available: R. v. Ali, 2021 ONCA 362, at paras. 96-98; R. v. Villaroman, 2016 SCC 13, at paras. 35-42.
[55] As already set out, the appellant testified as to why he ran. Respectfully, it was illogical, and, not surprisingly, challenged under cross-examination. The video makes clear that this was not a crowd beating on him like he suggested occurred in his home country. This was a group of 11-year old girls and some lifeguards, asking him to stop.
[56] The trial judge rejected the appellant's explanation for fleeing when he said:
I do not believe Mr. Singh. He tried to get away when confronted and has provided no narrative, that would displace the most obvious and classic reason for fleeing when confronted with allegation of misconduct, which is consciousness of guilt.
[57] While the trial judge did not elaborate as to the reasons he disbelieved the appellant's narrative for running, I do not accept the appellant suggestion that he failed to consider it as he was required to do. Nor do I accept that appellant's suggestion that in his brief oral reasons the trial judge placed on him an onus to establish an innocent explanation for having run. The experienced trial judge expressly said: "there is no burden on an accused to prove anything". I am not persuaded that immediately after correctly instructing himself, his use of the expression "he provided no narrative that would displace the most obvious and classic reason…" means he placed an onus on the appellant to explain his flight. The trial judge rejected the appellant's evidence, both about what occurred in the wave pool and about why he ran, and was not left in a state of doubt by it. Not only was this conclusions open to him on the evidence, but it was also, in view of the video and the girls' testimony, entirely reasonable. The trial judge knew and considered that the appellant had provided an explanation for running but was not persuaded by it. This was a short trial. On this record, the trial judge was entitled to conclude that the only reasonable explanation for the appellant running from the little girls and lifeguards was that he knew that what he had done was not accidental and wanted to try to flee to avoid being answerable for his conduct.
iii) Whether the trial judge erred by engaging in credibility contest between the Crown witnesses and the appellant
[58] The appellant argues that the trial judge's reasons demonstrate that he improperly engaged in a credibility contest between the Crown and defence witnesses. The submission made is that the passage below demonstrates that the trial judge viewed this as a case in which he had to choose between the version of events offered by the Crown witnesses and that of the defence:
The scenario provided by [the Appellant] does not allow for a mistake by the girls. It is totally inconsistent with their accounts. That is to say that there is no room for me to conclude they were confused. That assessment isn't available here. Either I am convinced beyond a reasonable doubt that the girls are telling the truth, or I am in a state of doubt as to whether things happened the way [the Appellant] says they did.
[59] Trial judges are presumed to know the law and are not required to articulate reasons for every interference that was or was not drawn: R. v. Hodgson, 224 SCC 25, at para. 68.
[60] In his brief oral Reasons for Judgment, the trial judge specifically instructed himself on the burden of proof and the principles in W.D. While read in isolation, the above passage could suggest that he thought he had a choice to make between the version of the girls and that of the appellant, his reasons as a whole do not reflect this.
[61] In particular, the trial judge accepted the evidence of the complainant and Z.C. He did so because he found:
a. They provided coherent and detailed accounts of what happened;
b. They were unshaken in cross-examination;
c. There was no basis upon which to conclude that they had colluded;
d. He accepted the evidence of C.E. that she was touched by a man in the wave pool while the waves were still on and that he smirked at her after;
e. The evidence of C.E. and Z.C. powerfully confirmed the accuracy of the evidence given by the other. They provided remarkably similar accounts of what occurred in the wave pool, including that the waves were off when the incident occurred and that Z.C. saw the appellant's hand between C.E.'s legs as she described.
[62] In sum, the trial judge accepted that the evidence of the girls was "compelling", a factual finding that he was entitled to make and to which deference is owed.
[63] The trial judge accurately recognised that the version of events provided by the appellant was totally inconsistent with that of the girls. They said that the waves were stopped when the touching occurred. C.E. said that she felt and saw a hand come from behind her, to between her legs, with an upward palm contacting her vagina over her bathing suit. She turned and saw the appellant standing nearby smirking. In contrast, the appellant said that the waves were moving when he dove into the waves and felt his hand brush against someone. I am not persuaded that the trial judge's observation that the versions were inconsistent constituted a reversal of the onus of proof or suggests that the trial judge treated this as a credibility contest.
[64] Unlike in R. v. T.A., 2020 ONCA 783, at para. 27, upon which the appellant relies, this is not a case in which the trial judge concluded from the fact that the versions were "diametrically opposed" that "they both cannot be telling the truth". Moreover, the trial judge recognized that he would have to acquit the appellant if he was left in a state of doubt as to whether things happened the way the appellant claimed. In other words, he appreciated that if he had a doubt about whether things happened in the accidental manner that the appellant described, that he had to acquit.
[65] While one of the trial judge's reasons for rejecting the appellant's evidence was the compelling nature of the girls' evidence, this was said only after the trial judge explained why he found the complainant's evidence compelling. I do not find that this is a case in which the trial judge rejected the appellant's evidence simply because he preferred the evidence of the complainant: R. v. J.J.R.D., 218 O.A.C. 37, at para. 53; R. v. R.D., 2016 ONCA 574, at paras. 13-23; R. v. T.A., at para. 36-37.
[66] The trial judge gave a further reason for rejecting the appellant's version of events: the fact that he attempted to flee in circumstances in which the only reasonable conclusion to reach from him doing so was that he was trying to evade capture for what he knew was wrongful conduct in the wave pool. As I have already discussed, the evidence certainly left available that this was the only reasonable inference from all of the circumstances.
[67] The appellant suggests that the trial judge's reasoning foreclosed him having a doubt on the basis that there was a "great deal of grey area" in the evidence. For instance, the appellant suggests that the appellant might have inadvertently and accidentally brushed his hand against the complainant as he was rising in the water, and that this angle and direction of his hand might have aligned with the complainant's testimony.
[68] While theoretically this was possible, this argument was never advanced. Defence counsel never suggested to C.E. either that the waves were still going or that the appellant could have touched her in the way she described, accidentally, as he came up. Rather, he had her confirm the details she had provided in her statement that she saw the appellant's hand, palm up, between her legs, making any suggestion of this having been accidental virtually impossible.
[69] Similarly, the appellant never testified that his hand could have touched the complainant as she described in a manner that was accidental. In chief, he said, "the waves pushed me and my hand struck somebody". Under cross-examination, he described his palms facing down as he dove in the waves and then described his hands facing towards his chest and face as he came back up. Asked about the point when he had touched the complainant's vaginal area, he said that when he was underneath the water, he felt that his hand touched someone. He seemed to suggest that he hit her hand, but then clarified, "to me, it felt like it hit someone", saying, that "it was not the brush or touching, it just hit someone".
[70] I am not persuaded that against this factual background, the trial judge was required to engage in speculation about how the appellant could have touched the complainant as she described in a manner that was accidental. This conclusion is strengthened by the fact that defence counsel at trial conceded that if the incident occurred as the complainant described, it was a sexual assault.
[71] While some of the trial judge's language was not ideal, and could suggest that the case was assessed as a credibility contest, I cannot conclude that the trial judge committed this error. This ground of appeal is dismissed.
Conclusion
[72] Many of the appellant's complaints reflect a concern about the sufficiency of the trial judge's reasons in that the trial judge is alleged not to have dealt with elements of the offences charged or evidence that might have raised a doubt about whether the Crown had proven its case beyond a reasonable doubt.
[73] Reasons for judgment are very important as they are how a trial judge communicates to the public and the parties that justice was served. The role of the appeal court is not to search the reasons for error. As Karakatsanis J. wrote in G.F., at para. 69, appeal courts:
…must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., "[t]he foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded": para. 17. And as Charron J. stated in Dinardo, "the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case's live issues": para. 31.
[74] The trial judge's gave brief oral Reasons for Judgment. Measured against the standard to which they are to be assessed, and against the evidence and arguments that were put forward at the trial, I find them to be legally sufficient. I find that when the Reasons are read as a whole, the trial judge made no reversible error.
[75] The appeal is dismissed.
Woollcombe J.
Released: August 5, 2025
Footnote
[1] The suggestion that he had apologized and told C.E. that whatever happened was an accident was never put to C.E. She did testify that his friends told her he had not meant to do anything and that either he or one of his friends said "oh, I thought you were my daughter" or that she looked like his daughter. The appellant agreed under cross-examination that he did not have a daughter at the time. At one point in cross-examination, he testified that he had said to his friend she is like a daughter to him, or like a child, but he denied saying that to C.E. and denied that he said it because he knew at the time he was being accused of doing something wrong. Under re-examination, the appellant's evidence about this changed and he testified that what was said about the complainant being like his daughter was after the police and security arrived. This evidence makes clear that there were issues respecting the appellant's understanding of English and what was said by him and what was translated. The trial judge made no factual findings as to what he said.