



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

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    that could identify the victim or a witness shall not be published in any document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

(a)      any of the following offences;

(i)       an offence under
    section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172,
    172.1, 172.2, 173, 210, 211, 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 complainants
    sexual integrity and that conduct would be an offence referred to in
    subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014,
    c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)       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 victim of the right to make
    an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their
    right to make an application for the order; and

(b) on application of the victim or the prosecutor,
    make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that section,
    shall not be published in any document or broadcast or transmitted in any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18.

486.6(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.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR
    ONTARIO

CITATION:  R. v. K.J.W., 2015 ONCA 870

DATE: 20151211

DOCKET: C56870

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

And­­

K.J.W.

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

David Lepofsky, for the respondent

Heard:  June 11, 2015

On appeal from convictions entered by Justice Richard
    Gates of the Superior Court of Justice, dated December 17, 2012, and on appeal
    from sentences imposed on April 15, 2013.

Doherty J.A.:


I



OVERVIEW

[1]

The appellants stepdaughters, Complainant 1 and Complainant 2, alleged
    that the appellant sexually assaulted them.  The allegations produced a
    10-count indictment.  Counts 1-4 involved an allegation by Complainant 2, the
    younger daughter, that when she was about nine, the appellant carried her into
    his bedroom, tied her hands and feet to the bed with binder twine, and sexually
    assaulted her.  Counts 5-8 arose out of an allegation by Complainant 1, the
    older sister, that the appellant did the same thing to her when she was about
    11 or 12.  Counts 9 and 10 involved allegations by Complainant 2 that when she
    was 15 or 16 years old, the appellant touched her breasts and/or her vagina on
    several occasions when he was giving her a massage.  Complainant 2 also alleged
    that in late December 2007 when she was 16, the appellant ran his hand up her
    inner thigh to her groin.

[2]

The outcome at trial turned largely on the trial judges assessment of
    the credibility of the various witnesses.  The Crown called Complainant 1, Complainant
    2, their mother, T.S., and D.T., Complainant 2s boyfriend, as witnesses at the
    trial.  The Crowns case depended mainly on the evidence of Complainant 1 and Complainant
    2.  T.S. gave evidence primarily about the circumstances surrounding her
    daughters disclosures of the alleged assaults in February 2010.  D.T. gave
    evidence about Complainant 2s disclosure to him in early 2008 that the
    appellant had placed his hand on her inner thigh and moved it upward toward her
    groin area.

[3]

The appellant testified and denied the allegations.  The defence
    maintained that the allegations emerged in February 2010 in the midst of a
    bitter breakup of the appellants marriage to T.S.  The defence contended that
    T.S. and her daughters colluded to make false allegations against the appellant
    as part of T.S.s attempt to ruin his life and force a more favourable
    financial settlement from him.

[4]

The defence did acknowledge that in early 2008, Complainant 2 had
    alleged that the appellant had touched the inside of her thigh while she was
    lying in bed.  The appellant testified that his wife asked him about this
    allegation, he denied it, and she accepted the denial.  According to the
    defence, nothing more was said to the appellant about the incident until
    February 2010 when T.S. made a reference to the allegation in an email she sent
    to the appellant at about the same time as she was asking Complainant 1 and Complainant
    2 about any possible misconduct by the appellant.  Those inquiries led to the
    February 2010 revelations.

[5]

The trial judge accepted the evidence of the Crown witnesses.  He
    rejected the defence claim that the allegations were fabricated by T.S. and her
    daughters after her marriage with the appellant broke up and the bitter marital
    dispute developed in early 2010.  In arriving at his conclusion, the trial
    judge was strongly influenced by evidence, which he accepted, that Complainant
    2 had complained in late 2007 or early 2008 to her mother and her boyfriend
    that the appellant had touched the inside of her leg and moved his hand up to
    her groin area.  The trial judge reasoned that Complainant 2s prior complaint
    that the appellant had inappropriately touched her leg, long before the
    marriage breakup, negated the defence claims that T.S. and her daughters had
    fabricated the allegations first made after the marriage breakup.

[6]

The trial judge entered convictions on counts 1 and 2 (sexual assault
    and confinement of Complainant 2), counts 5 and 6 (sexual assault and
    confinement of Complainant 1), and count 9 (sexual assault of Complainant 2). 
    The conviction on count 9 appears to have been based on a finding that the
    appellant sexually assaulted Complainant 2 when giving her massages and
    sexually assaulted her by putting his hand on her thigh near her groin area.
[1]
The other charges in the indictment arose out of the same events and were
    stayed under the
Kienapple
principle.  The trial judge imposed
    sentences totalling 36 months.

[7]

The appellant appeals conviction and sentence.


II



[8]

The arguments raised on appeal require a somewhat detailed review of the
    evidence.  I will begin with a chronological outline.



Date

Event



1994

The appellant and T.S., the
          girls mother, begin dating.



December 1998

The appellant and T.S.
          marry. Complainant 1 is 9 and Complainant 2 is 7.



Around 2000-2001

Complainant 2 alleges that when she was about 9 or 10, she
          was home alone with the appellant.  He threw her over his shoulder, carried
          her into his bedroom, tied her hands and feet to the bed in a starfish
          position with binder twine, and sexually assaulted her (counts 1-4).



Around 2000-2001

Complainant 1 alleges that when she was about 11 or 12,
          she was home alone with the appellant.  He grabbed her, threw her over his
          shoulder, carried her into the bedroom, tied her hands and feet to the bed
          with binder twine in a starfish position, and sexually assaulted her
          (counts 5-8).



2006  early 2008

Complainant 2 testifies that when she was 15 or 16, the
          appellant, on several occasions, touched her vagina and/or breasts while
          giving her a massage (counts 9, 10).



Late December 2007

Complainant 2 testifies that the appellant came into her
          bedroom and made suggestive comments about how she could avoid being
          grounded.  While doing so, he ran his hand along her inner thigh to her groin
          (counts 9, 10).



Late 2007 - Early 2008

Complainant 2 tells her boyfriend that the appellant ran
          his hand up her thigh to her crotch area.  At her boyfriends insistence, Complainant
          2 discloses this event to her mother.  Her mother speaks to the appellant
          who, according to the mother, admits that the event happened, but explains
          that he was testing the lengths to which Complainant 2 would go with her
          boyfriend.  In his testimony, the appellant acknowledges that T.S. told him
          that Complainant 2 had made the accusation.  He testifies that he denied the
          allegation and nothing more came of it.



Early 2008

The appellant catches Complainant 2 and her boyfriend,
          D.T., engaged in sexual activity in her bedroom.  According to Complainant 2,
          the appellant tells her she could be grounded or get drunk and stupid with
          him.  Complainant 2 also testifies that the appellant insisted that either Complainant
          2 tell her mother about the sexual activity with her boyfriend, or the
          appellant would tell her mother.  Complainant 2 chose to tell her mother.



November 2009

The appellant, who has been having an affair with a
          younger woman, leaves T.S. and her daughters for that woman.



February 2010

The marital breakup has become very acrimonious.  T.S. and
          her girls are in financially difficult circumstances and the appellant is
          apparently reneging on promised support.  T.S. threatens to make the
          appellants life a living hell.  In various emails, she makes reference to
          allegations by Complainant 2 and Complainant 1 about the appellants
          misconduct.



February 13-15, 2010

Complainant 1 and Complainant 2 tell their mother about
          being tied up and sexually assaulted by the appellant some nine or ten years
          earlier. This is the first time either has disclosed the incident to anyone. Complainant
          1 disclosed first and Complainant 2 disclosed the next day. Complainant 2
          also tells her mother that the appellant assaulted her while giving her
          massages. She had not told anyone about this before that disclosure.



Post February 15, 2010

Complainant 1, Complainant 2 and T.S. discuss the
          incidents disclosed by Complainant 1 and Complainant 2 in February 2010. 
          According to Complainant 1 and Complainant 2, they do not discuss the details
          of the events with each other, but instead discuss matters relating to the
          timing and chronology of the events.  They do discuss details with their
          mother.



March 2010

Complainant 1 and Complainant 2 begin counselling.



July 2010

Complainant 1 and Complainant 2 go to the police.




III



Complainant 1s allegations (counts 5 to 8)

[9]

Complainant 1 described a single incident during which she was tied up
    and sexually assaulted by the appellant.  Apart from that incident, she
    described a normal father/daughter relationship with the appellant that
    extended over many years, including several years before the incident and
    almost 10 years after the incident.  Complainant 1 also had a good relationship
    with her biological father throughout the same period.
[2]


[10]

Complainant
    1 recalled that the incident occurred when she was in grade six.  She was 11 or
    12 years old.  She and the appellant were home alone playing mini sticks in
    the living room.  Suddenly, the appellant picked her up, threw her over his
    shoulder, carried her into his bedroom and threw her on the bed.  The appellant
    began tickling Complainant 1.  He straddled Complainant 1, pinning her arms
    above her head.  He proceeded to tie her arms above her head to the side of the
    bed using binder twine attached to the bed.  The appellant did the same thing
    with Complainant 1s feet.  When asked by Crown counsel to describe her
    positioning, Complainant 1 replied, It was kind of like a starfish.

[11]

The
    appellant pulled Complainant 1s pants down and began to massage the insides of
    her legs, telling her that she had to learn how to react if she was kidnapped. 
    His hands moved close to, and touched the outside of her vagina.  The touching
    went on for a few moments and Complainant 1 blacked out.  The next thing she
    remembered, she was in her bedroom trying to figure out what had happened.  She
    did not know how the assault had ended.

[12]

Complainant
    1 testified that sometime after the incident when she was alone in the house,
    she went into the appellants bedroom.  She saw four pieces of binder twine
    attached to the corners of the box spring of the bed with nails.  There were
    slipknots on the end of each piece of binder twine. T.S. confirmed that the
    binder twine was attached to the bed. She and the appellant had used it during
    consensual sexual activity.

[13]

Complainant
    1 did not mention the attack to her mother, her sister, her biological father,
    or anyone else until February 2010.  She put the incident out of her mind and
    gave it no further thought.  Her relationship with the appellant continued as
    it had before the attack.  She spent time alone with him and one summer worked
    with him on his ice cream truck.  She also arranged for the appellant to stay
    in her apartment when she was at university for a few days after a break-in.

[14]

Complainant
    1 was living away from home at university in November 2009 when the appellant
    left her mother and moved in with another woman.  Complainant 1 went home to
    provide support for her mother who was very hurt and angry with the appellant. 
    Her mother became angrier in early 2010 when she learned that the appellants
    new girlfriend was pregnant.  Complainant 1 agreed that she too was angry with
    the appellant and she saw herself as the protector of her younger sister and
    mother.

[15]

The
    appellants sudden departure from the family left Complainant 1, Complainant 2
    and her mother in difficult financial circumstances.  Those circumstances
    worsened as the appellant failed to provide financial support.  By mid-February
    2010, the relationship between Complainant 1s mother and the appellant had
    become very acrimonious.  Her mother threatened to make the appellants life a
    living hell if he did not meet her demands for financial support. In an email
    to the appellant on February 11, 2010 T.S. threatened to tell her lawyer that
    the appellant got Complainant 2 drunk and molested her.

[16]

Complainant
    1 testified that in mid-February 2010, T.S. told her that Complainant 2 had
    told her that when Complainant 2 and the appellant were drinking together, the
    appellant touched her leg and went up her leg.  Complainant 1s mother asked Complainant
    1 if anything like that had happened to her.  After a brief pause, Complainant
    1 told her mother that the appellant had tied her up and sexually assaulted
    her.  According to Complainant 1, she described the entire incident to her
    mother.

[17]

T.S.,
    Complainant 1s mother, gave a somewhat different version of the disclosure. 
    She testified that she did tell Complainant 1 about Complainant 2s complaint
    that the appellant had touched her leg and she did ask Complainant 1 whether
    anything like that had happened to her.  Complainant 1 only indicated that the
    appellant had tied her up.  According to T.S., Complainant 1 did not say
    anything about a sexual assault and T.S. did not think there was any sexual
    assault involved.  T.S. testified that it was only after she spoke to Complainant
    2 the next day and Complainant 2 told her that she had been tied up and
    sexually assaulted that T.S. went back to Complainant 1 and asked for more
    details.  Complainant 1 then described the sexual assault.

[18]

T.S.
    did not suggest to her daughters that they should go to the police. Instead on
    February 13, 2010, she emailed the appellant and accused him of tying Complainant
    1 up and seducing her daughters. In a second email, sent the same day, she
    demanded a written support agreement from the appellant.

[19]

Complainant
    1 testified that in March 2010, she and Complainant 2 went into counselling. 
    They attended counselling sessions separately and did not discuss the details
    of the incident apart from some discussions about the timelines and their
    respective ages when the incidents occurred.  Complainant 1 testified that she
    and Complainant 2 went to the police together in July 2010, but made their
    complaints independently of each other.

[20]

Complainant
    1 also testified that at some time after the initial disclosure, her mother
    told her that she and the appellant had used the binder twine on the bed for
    consensual sexual activity.  T.S. denied telling her daughter anything about
    her sexual activity with the appellant.


IV



Complainant 2s allegations

[21]

Like
    Complainant 1, Complainant 2 had a daughter/father relationship with the
    appellant.  Complainant 2 was particularly close with the appellant and did not
    have a relationship with her natural father.  Also, like Complainant 1, Complainant
    2 was very angry with the appellant when he left the family and moved in with
    another woman.  She wrote a letter to the appellant at Christmas 2009 in which
    she made her anger and strong sense of betrayal clear.  She wrote, in part:

I cant believe one thing that comes out of your mouth.  It
    kills me to know that you lied to me, went behind my back and betrayed me.  You
    arent the same person that I loved as my father.  You are a stranger to me
    now!

You claim that you love [Complainant 1] and I  but a person
    that loves us couldnt do the things you are doing  not even our real father. 
    Just face it you love yourself more

[22]

On
    February 14, 2010, T.S. told Complainant 2 that Complainant 1 had told her that
    the appellant had tied her up.  In response to a question from her mother, Complainant
    2 revealed for the first time that the appellant had tied her to his bed and
    sexually assaulted her some 10 years earlier.

[23]

At
    trial, Complainant 2 recalled that the appellant threw her over his shoulder
    and carried her kicking and screaming into the bedroom.  He tied her arms and
    legs to the bed with binder twine that was attached to the four corners of the
    bed.  She described herself as positioned like a starfish.  Complainant 2
    testified that the appellant licked her vagina and nipples while saying words
    to the effect that he did not want anyone to do something like that to her.

[24]

Complainant
    2 had no recollection of how the incident ended.  She did recall seeing binder
    twine attached to the bed years later.  She also testified that when she told
    her mother about the incident, T.S. told her that she and the appellant used
    the binder twine for consensual sexual activity.  T.S. denied talking to Complainant
    2 about her sexual activity with the appellant.

[25]

Complainant
    2 testified that the appellant had not done anything improper to her before
    this incident.  He never attempted to tie her up again.  Complainant 2 did not
    tell anyone about the assault.  She testified that she forgot about it and put
    it out of her mind.  Her relationship with the appellant after the alleged
    assault went on as it had been before that incident.

[26]

When
    Complainant 2 made her initial disclosure to her mother on February 14, 2010,
    she could not speak about the incident, but instead gave her mother a written
    description.  She provided a second written description, describing the
    assaults committed by the appellant when he was giving her massages. These
    assaults occurred when she was a teenager.  Neither written description was
    available at trial.

[27]

Complainant
    2 denied that she discussed any of the details of the sexual assaults with her
    sister.  She did have some discussion with Complainant 1, but only to put
    together the timeline relating to the incident in which she was tied to the
    bed.  Complainant 2 did discuss the details with her mother and she had no idea
    what her mother said to Complainant 1.

[28]

After
    months of counselling, Complainant 2 decided to go to the police.  Before going
    to the police, she spoke to her mother who reminded her to be sure to tell the
    police that the appellant had got her drunk on one occasion.

[29]

Complainant
    2 also gave evidence about the assaults that occurred when she was 15 or 16.  Complainant
    2 testified that the appellant often gave her and Complainant 1 massages,
    particularly when they were sore after hockey.  He would give the girls
    massages in the bedroom and in the living room and sometimes other members of
    the family would be present.  Initially, nothing untoward happened.  However,
    when she was 15 or 16, the appellant began to touch Complainant 2s breasts and
    vagina while giving her massages.  This touching did not occur every time the
    appellant gave her a massage, but did occur on several occasions when they were
    in the bedroom together.  Complainant 2 did not tell anyone about these
    assaults until she made her disclosures in February 2010.

[30]

Complainant
    2 starting dating D.T. in July 2007 when she was almost 16.  They began
    engaging in sexual activity sometime after her sixteenth birthday in September
    2007.

[31]

In
    early 2008, the appellant caught Complainant 2 and her boyfriend engaged in
    sexual activity in her room.  Complainant 2 said that the appellant told her
    she would be grounded unless she got drunk and stupid with him.  Complainant
    2 understood this comment to have a sexual connotation.

[32]

Complainant
    2 testified that on a previous occasion, after she had started dating D.T., and
    at her request, the appellant had given her several drinks so that she could
    learn to handle her liquor when with her friends.  Complainant 2 testified that
    she became drunk and her mother came home and found her vomiting in the
    bathroom.  Complainant 2 did not suggest that the appellant did anything
    improper to her while she was intoxicated.  Her mother did not say anything to
    her about the drinking incident.  The appellant acknowledged in his evidence
    that he had given Complainant 2 liquor and she got drunk.  He agreed that he
    acted irresponsibly.

[33]

Complainant
    2 testified in-chief that she told her mother about the appellants drunk and
    stupid comment and as a result avoided being grounded for the incident with
    her boyfriend.  T.S. testified that Complainant 2 did not tell her about the
    appellants comment.  T.S. did testify that Complainant 2 told her about
    engaging in sexual activity with her boyfriend.  In cross-examination, Complainant
    2 testified that she only told her mother about the incident with her boyfriend
    because the appellant insisted that she do so.  The appellant told her that if
    she did not tell her mother, he would tell her.

[34]

Complainant
    2 also recalled an incident in late 2007.  She had been grounded for failing to
    do an assigned chore.  She was unhappy that she could not communicate with her
    friends.  The grounding was extended when Complainant 2 broke the rules.  She
    repeatedly asked the appellant to remove the grounding restrictions.

[35]

Complainant
    2 testified that one night the appellant called her into his room and in a
    suggestive manner asked her whether she would do anything to end the grounding. 
    She responded, thats what you have a wife for.  Complainant 2 left the
    room.  Later that evening, the appellant came into her bedroom and again made
    comments about ending the grounding.  As he did so, he ran his hand up her
    thigh to her groin area on the outside of her pajamas.  Complainant 2 told the
    appellant she would stay grounded.

[36]

Complainant
    2 testified that she told her boyfriend, D.T., about the appellant rubbing his
    hand along her thigh up to her groin area.  He insisted that she tell her
    mother or go to the police.  D.T. testified that he recalled Complainant 2
    telling him about the appellant rubbing her leg while she was lying in bed up
    to her crotch. He recalled that she said the incident occurred while she was
    grounded. D.T. was not sure but he thought the grounding was imposed after the
    appellant had found D.T. and Complainant 2 engaged in sexual activity in her
    bed.

[37]

T.S.
    testified that sometime after Complainant 2 and D.T. started dating in
    September 2007, Complainant 2 told her that, on one occasion, the appellant had
    run his hand along her leg up to her crotch area. T.S. said that when the
    appellant returned home she spoke to him about Complainant 2s allegation. The
    appellant acknowledged that he had run his hand up her leg and indicated he
    just wanted to see how far she would go with her boyfriend.  T.S. believed
    her daughter 110% but could not believe that the appellant would sexually
    assault Complainant 2.  She ultimately accepted the appellants explanation,
    although she became uncomfortable with the appellant being alone with Complainant
    2.

[38]

The
    appellant testified that T.S. did confront him about the leg touching incident.
    He told T.S. that no such thing happened and nothing more was said about it
    until after the marriage broke up.


V



the grounds of appeal

[39]

Mr.
    Greenspan, for the appellant, mounted a vigorous multi-pronged attack on the
    trial judges reasons.  He submitted that despite the length of the reasons (92
    pages), they contain virtually no analysis of the evidence, but instead, after
    a lengthy and confusing summary of the evidence, simply set out the trial
    judges findings in a conclusory and unexplained way.  Counsel submits that the
    reasons defy meaningful appellate review.  He also raises several specific
    complaints, most of which focus on the alleged misapprehension of material
    evidence.

[40]

Mr.
    Greenspan does not argue that the verdicts are unreasonable, but instead
    submits that the quality of the reasons as a whole, and the specific errors in
    the reasons, taken separately or together, necessitate the quashing of the
    convictions and the ordering of a new trial on all counts.

[41]

Mr.
    Lepofsky, Crown counsel, takes the position that the reasons adequately set out
    the basis upon which the trial judge reached his conclusions.  He submits that
    the case turned on findings of credibility and that the trial judge made those
    findings and explained those findings adequately in his reasons.  Mr. Lepofsky
    contends that the appellants submissions are essentially an argument that the
    verdict is unreasonable.  He argues that the merits of that argument must be
    assessed within the narrow limits of appellate review contemplated by s.
    686(1)(a)(i) of the
Criminal Code
.  Crown counsel urges the court to
    reject the appellants invitation to retry the allegations.

[42]

There
    is force to Mr. Greenspans complaints about the reasons taken as a whole. 
    However, I do not accept the claim that the reasons do not allow for meaningful
    appellate review.  The reasons make it plain that the trial judge understood
    that the outcome turned on credibility assessments.  The reasons also
    demonstrate that the trial judge understood that the competing versions of the
    relevant events called for a careful application of the criminal burden of
    proof and the presumption of innocence.  The trial judge correctly identified
    the three-step approach described in
R. v. W. (D.)
, [1991] 1 S.C.R.
    742, as the template for the analysis of the competing versions of events.  He
    accurately described that three-step approach (pp. 55-58) before applying that
    approach to the evidence (pp. 61-68).

[43]

Although
    I agree with Mr. Lepofsky that the trial judges reasons are susceptible to
    appellate review, I also agree with Mr. Greenspan that those reasons reveal
    reversible error.  The trial judge, in the course of his application of the
    principles in
W.(D.)
to the evidence, made three significant errors
    that necessitate the quashing of the convictions.

(i)

The trial judge misapprehended the evidence of animus

[44]

The
    trial judge found that there were significant marital difficulties after the
    appellant left T.S. in November 2009.  Heated arguments developed over support
    for T.S. and the girls.  The trial judge held that the breakup and the
    subsequent financial disputes caused significant hostility between the
    appellant and T.S.  He went on to hold but this was their issue, not the
    girls (p. 63).

[45]

The
    evidence of Complainant 1 and Complainant 2 makes it abundantly clear that the
    animus caused by the marriage breakup extended to the girls.  Both acknowledged
    that they were very angry with the appellant.  Complainant 1 in particular saw
    her role as the protector of her mother and younger sister.  Complainant 2s
    letter to the appellant at Christmas of 2009 vividly reveals her bitter
    disappointment, anger and sense of betrayal.

[46]

The
    trial judges misapprehension of the evidence of animus was important.  The
    defence was premised on the claim that the February 2010 disclosures by Complainant
    1 and Complainant 2 were triggered by the animus that the girls and their
    mother had for the appellant as a result of the marriage breakup and the
    appellants refusal to provide the necessary financial support for T.S. and
    them.  By erroneously holding that the animus extended only to T.S., the trial
    judge all but pulled this key plank from the case for defence.

(ii)

The trial judge misapprehended the appellants evidence about being
    confronted with the allegation that he had improperly touched Complainant 2s
    leg

[47]

In
    the course of his
W.D.
analysis and, in particular, his consideration
    of the appellants evidence, the trial judge, at p. 62, indicated that when the
    appellant was asked in his evidence about the leg touching incident:

He denied this happened and he denied the confrontation with
    [T.S.] had occurred.  However, later in cross-examination he admitted that his
    prior testimony that no one had ever accused him of a sexual advance was
    wrong.  He resiled from this position and admitted he had been confronted by
    [T.S.] over the incident.

[48]

The
    trial judge seriously misapprehended the appellants evidence.  The appellant
    never denied that T.S. asked him about the leg touching incident.  The topic
    was first raised during the examination-in-chief of the appellant:

Q. All right.  Do you recall  did that happen?

A. She asked me back when we lived on [Road] about an incident
    like that and I just  I denied it because it wasnt right or true and after
    that it was kind of dropped.

Q. Okay.  So when would this have been, to the best of your
    knowledge?

A. I think it was just after I caught her and [D.T.] fooling
    around.

Q. Just after you caught her and?

A. [Complainant 2] and [D.T.] fooling around.

Q. Okay.  And just after, do you mean weeks after, days after
    or?

A. A few weeks after, I believe.

Q. Okay.  T.S. presents this allegation to you?

A. Yes, she did.

Q. Do you recall what it was?

A. Something about that I was going up her thigh with my hand
    or something down that line.

Q. Yes.  And so what did you say?

A. I told her, no, I wouldnt do that.

[49]

Nor
    did the appellant ever admit in his cross-examination that his evidence
    in-chief was wrong and resile from that evidence.  To the contrary, when
    questioned on cross-examination, the appellant denied that he had ever intended
    to suggest in his evidence in-chief that he had not been asked about the leg
    touching incident by T.S.
[3]


[50]

The
    trial judges misapprehension of this part of the appellants evidence was
    significant.  The misapprehension provided one of the few references by the
    trial judge during his
W.D.
analysis to the content of the appellants
    testimony.  Furthermore, the trial judges misapprehension of the appellants
    evidence provided a powerful reason for rejecting his evidence.  The
    misapprehension went directly to the credibility of the appellants evidence
    concerning the leg touching incident.  That incident became the central
    factual feature for the trial judge in his resolution of the credibility issues
    raised by the evidence.

(iii)

The
    trial judge misused the evidence that Complainant 2 disclosed the leg
    touching incident prior to the animus that developed after the marriage broke
    up in November 2009

[51]

The
    trial judge referred several times in his reasons to the uncontradicted
    evidence that Complainant 2 had disclosed a leg touching incident to her
    mother early in 2008, almost two years before the marriage breakup.  The trial
    judge held that Complainant 2s disclosure in early 2008 of the leg touching
    incident refuted the defence claim that Complainant 1, Complainant 2 and their
    mother had fabricated the allegations made for the first time in February 2010
    to get back at the appellant for the marriage breakup and to assist T.S. in
    obtaining a favourable financial settlement.  In his reasons, the trial judge
    described the evidence of the disclosure of the leg touching incident prior
    to the marriage breakup as rebutting or negating the defence claim of
    collusion.  For example, he said, at p. 65:

In my view, this evidence [disclosure of the leg touching
    incident] is not only credible,
it negates the defence position that they
    were lying and therefore engaged in a form of collusion either active or
    passive to make him pay for leaving their home.
[Emphasis added.]

[52]

Evidence
    that Complainant 2 had told her mother about the leg touching incident was
    admissible as part of the Crowns case.  Complainant 1 had testified that it
    was T.S.s reference to Complainant 2s disclosure to her about the leg
    touching incident that precipitated Complainant 1s disclosure to T.S. on
    February 13, 2010 that the appellant had tied her to his bed and sexually
    assaulted her some 10 years earlier.  Consequently, evidence that Complainant 2
    had in fact told her mother about the leg touching incident was relevant to
    support the evidence of both T.S. and Complainant 1 concerning the disclosures
    made by Complainant 1.

[53]

Evidence
    that Complainant 2 had disclosed the leg touching incident to her mother and
    boyfriend in early 2008 would also have been admissible to rebut any suggestion
    that Complainant 2 had fabricated that allegation out of animus for the
    appellant generated by the acrimonious breakup of the marriage.  However, there
    was no defence allegation, explicit or implicit, that Complainant 2 had
    fabricated the leg touching allegation after the marriage breakup.  To the
    contrary, it was the defence position that Complainant 2 had made that
    allegation to her mother in early 2008 after she was caught in bed with her
    boyfriend.  The appellant had denied the allegation, and nothing more had been
    said about it.
[4]


[54]

The
    trial judge used the evidence of the prior disclosure of the leg touching
    incident to do much more than rebut any suggestion that Complainant 2 had
    fabricated that specific allegation after the marriage breakup.  On the trial
    judges analysis, the disclosure of the leg touching incident negated the
    defence contention that the February 2010 allegations by both Complainant 1 and
    Complainant 2 were precipitated by the strong animus created by the breakup of
    the appellants marriage with T.S.  Although the trial judge did not explain
    why he regarded the disclosure of the leg touching incident as having that
    effect, it seems implicit that the trial judge found that the evidence that Complainant
    2 had made an allegation of sexual impropriety against the appellant before the
    marriage breakup would rebut any suggestion that Complainant 1, Complainant 2
    and their mother had concocted entirely different and much more serious
    allegations of sexual impropriety after the marriage breakup.  Mr. Lepofsky, in
    his submissions, accepted this logic and argued that the evidence of the prior
    disclosure of the leg touching incident had the effect of blowing a huge
    hole in the defence theory.

[55]

I
    do not accept the reasoning of the trial judge.  The value of a prior
    consistent statement lies in its ability to counter the argument that a witness
    has lied for a specific reason.  As explained in
R. v. Stirling
, 2008
    SCC 10, [2008] 1 S.C.R. 272, at para. 5:

Prior consistent statements have a probative value in this
    context where they can illustrate that the witnesss story was the same even
    before a motivation to fabricate arose.
[Emphasis added.]

[56]

A
    prior statement by a witness that is consistent with the witnesss testimony
    can rebut an allegation that the witness has fabricated her testimony for a
    specific reason if the prior consistent statement was made before the reason
    said to have generated the false testimony existed.  As is evident from the phrase
    prior consistent statement, the significance of the statement lies in the
    consistency between the allegation made before the alleged motive to fabricate
    existed and the later allegation made after the alleged motive arose.  If the
    allegations are different, the forensic force of the prior statement is lost.

[57]

The
    allegation Complainant 2 made against the appellant in 2008 is drastically and
    dramatically different from the allegation she made in February 2010.  In 2008,
    she alleged a single improper touching of her inner thigh on the outside of her
    pyjamas.  By February 2010, she was alleging that the appellant, when Complainant
    2 was a very young child, had tied her to his bed and perpetrated a very
    serious sexual assault.  She was further alleging that when she was a teenager,
    she was the victim of repeated sexual assaults by the appellant.  To use the
    language of
Stirling
, Complainant 2 did not tell the same story
    before and after the marriage breakup.  Rather, she told two dramatically
    different stories.  Indeed, a comparison of her allegation in 2008 with the
    allegations made after the marriage breakup could lend credence to the claim
    that the much more serious allegations made in February 10, 2010 were
    precipitated by the animus generated by the marriage breakup.

[58]

I
    appreciate that a witnesss credibility is not properly assessed by dissecting
    her testimony into pieces and examining each in isolation from the other.  The
    credibility of Complainant 2s evidence, like any witnesss evidence, had to be
    examined as a whole: see
R. v. Stirling
, at para. 12.  In a broad
    sense, the unchallenged evidence that Complainant 2 had made the leg touching
    complaint could make her allegations of sexual misconduct against the appellant
    more credible than they otherwise would have been.  Accepting that evidence of
    the prior disclosure had some relevance to Complainant 2s overall credibility
    is, however, a long way from holding that the evidence could operate like a
    prior consistent statement to negative a defence claim that the allegations
    were fabricated for a specific reason.  The trial judge misunderstood the
    potential value of the evidence of Complainant 2s prior disclosure of the leg
    touching incident.  He improperly used that evidence as if it were a prior
    consistent statement in respect of the allegations made in the February 2010
    disclosures.  Complainant 2s prior disclosure of the leg touching incident
    could not negate the collusion claim advanced by the defence.

[59]

The
    many references in the reasons to Complainant 2s disclosure of the leg
    touching incident demonstrate the powerful impact that evidence and its misuse
    by the trial judge had on the verdicts.  The collusion argument was the main
    component of the defence.  The trial judges use of the evidence of the
    disclosure of the leg touching incident effectively took collusion off the
    table.  The trial judges misuse of that evidence as determinative of the
    collusion claim also meant that the trial judge did not come to grips with the
    substantial body of evidence relevant to, and capable of supporting, the
    collusion claim.  I make this point by reference to two examples from the
    evidence.

[60]

The
    defence argued that there were striking similarities in the language used by Complainant
    1 and Complainant 2 to describe the incident in which they alleged they were
    tied to the bed and sexually assaulted by the appellant.  The defence argued
    that these striking similarities in the descriptions were indicative of
    collusion, or at least subconscious tainting brought about as a result of discussions
    among Complainant 1, Complainant 2 and their mother.  The defence also claimed
    that these similarities put the lie to the evidence of Complainant 1 and Complainant
    2 that they did not discuss the details of the incidents.

[61]

Complainant
    1 and Complainant 2 did use the same words to describe some parts of the
    alleged confinement and sexual assault in the bedroom.  Both testified that the
    events began in the living room when the appellant, out of nowhere and with no
    prior history of any misconduct towards them, picked them up, threw them over
    his shoulder and carried them into the bedroom.  Complainant 1 and Complainant
    2 both testified that they were tied up and positioned like a starfish.  Both
    also testified that they had no recollection of how the assault ended.

[62]

The
    similarities in the language used by Complainant 1 and Complainant 2 to
    describe several features of the alleged assault in the bedroom required
    careful consideration in the assessment of the collusion claim.  Perhaps the
    most striking similarity is the use of the word starfish by both Complainant
    1 and Complainant 2 to describe their positioning after the appellant tied them
    up.  The trial judge indicated that the use of the word starfish by both did
    not concern him.  He did not explain why except to refer to the Crown argument
    that it was hardly surprising that both girls would be familiar with the shape
    of a starfish (p. 77).  The significance to the collusion claim lay not in the
    possibility that both girls might not be aware of the shape of a starfish
    absent collusion, but rather that out of all of the possible descriptors that Complainant
    1 and Complainant 2 could have chosen to describe their positioning, each chose
    exactly the same descriptor.

[63]

In
    the same vein, the potential impact on the collusion claim of evidence that
    both Complainant 1 and Complainant 2 professed to have no recollection of how
    the assault ended is not muted, as suggested by the trial judge by reference to
    the inability of children to remember the details of long past events (p. 66). 
    The significance to the collusion claim lies in the fact that the memories of
    both girls appear to end at the same point in the assault, arguably suggestive
    of collusion, or at least a joint reconstruction of a recollection.

[64]

A
    second aspect of the evidence relevant to collusion that was not addressed in
    any detail by the trial judge relates to the evidence of discussions among Complainant
    1, Complainant 2 and their mother about the alleged assaults between February
    2010 and July 2010 when the girls went to the police.  Complainant 1, Complainant
    2 and T.S. gave different evidence about the discussions among the three before
    the girls went to the police in July.  Complainant 1 acknowledged talking about
    the events after the February 10
th
disclosure with her mother and Complainant
    2.  She later insisted that she had not discussed the details with Complainant
    2, although she had perhaps discussed the details with her mother.  Complainant
    2 denied knowing the details of the assault on Complainant 1, although she did
    testify that she discussed details with her mother.  T.S. testified that she
    deliberately refrained from discussing any details with her daughters and did
    not tell one what the other had said about the incidents.

[65]

The
    trial judge did not examine any of this evidence as it applied to collusion. 
    He did not, for example, consider whether apart entirely from deliberate
    collusion, the evidence of Complainant 1 and Complainant 2 may have been
    tainted by information passed from one sister to the other through T.S. 
    Presumably, the trial judge, having rejected the collusion claim because of the
    evidence of Complainant 2s disclosure of the leg touching incident, saw no
    need to examine the conflicting and confusing evidence pertaining to the
    discussions among Complainant 1, Complainant 2 and T.S. before the girls went
    to the police in July 2010.

[66]

The
    trial judges misuse of the evidence of the prior disclosure of the leg
    touching incident is perhaps the trial judges most significant error in his
    application of
W.(D.)
to the evidence in this case.  That error denied
    the appellant a full and fair evaluation of the evidence relevant to
    collusion.  I do not suggest that the collusion claim would necessarily have
    carried the day had the trial judge properly limited the use of the evidence of
    the disclosure of the leg touching incident.  It is enough to say that the
    collusion claim had support in the evidence.  There is no way of knowing how
    the evaluation of that claim might have come out on a proper consideration of
    the evidence.


VI



conclusion

[67]

The
    misapprehension of material evidence and the misuse of the evidence of Complainant
    2s disclosure of the leg touching incident taken together constitute
    reversible error. The proviso cannot be applied.  While the convictions are
    justifiable on the evidence, they are far from inevitable.

[68]

I would order a new trial on all counts, including those counts on which
    the trial judge entered stays based upon the 
Kienapple

principle:  see
R. v. P. (D.W.)
,
    [1987] 2 S.C.R. 3.

Released: DEC 11 2015
    DD

Doherty
    J.A.

I
    agree S.E. Pepall J.A.

I
    agree C.W. Hourigan J.A.






[1]
It is difficult to tell from the trial judges reasons whether his conviction
    on this count related to both the massages and the incident involving the
    touching of the thigh or only the latter (see reasons, pp. 86-89).  Either
    would have been sufficient to convict and, as best as I can tell, the trial
    judge found both.



[2]
Complainant 1 testified that when she was in high school, the appellant
    sometimes touched her breasts when giving her massages.  She felt this was
    inappropriate and would immediately discontinue the massage if he touched her
    breasts.  This alleged conduct was not the subject of a count in the
    indictment.  The defence brought a mistrial application when Complainant 1 gave
    evidence about the improper touching during the massages.  The trial judge
    refused the mistrial, indicating he would disregard any evidence pertinent to
    an allegation which has not been pursued.  Apart from a brief reference when
    summarizing Complainant 1s evidence, the trial judge made no reference to this
    evidence.  I proceed on the basis that the trial judge did not find that the
    appellant sexually assaulted Complainant 1 when giving her massages.



[3]
The appellant was asked in-chief whether when he left in November 2009 any
    allegations were made with regard to the children of the nature youre facing
    now.  The appellant answered no.  Three questions later, his lawyer
    specifically asked about the leg touching incident and the exchange quoted
    above in para. 53 followed.



[4]
Prior consistent statements are also sometimes admissible as part of the
    narrative to help a trier of fact understand how a complaint was made and
    evolved:  see
R. v. Dinardo
,
2008
    SCC 24
, [2008] 1 S.C.R. 788 at para. 37.  No one suggested that the
    evidence of Complainant 2s disclosure of the leg touching incident should be
    treated as part of a disclosure process that culminated in the February 2010
    disclosures.


