



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




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. D.H., 2016 ONCA 569

DATE: 20160715

DOCKET: C58814

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.H.

Appellant

Jason Rabinovitch, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 18,
    2014 and the sentence imposed on May 20, 2014 by Justice Marion L. Cohen of the
    Ontario Court of Justice.

Feldman J.A.:

[1]

The appellant, D.H., was convicted in Youth Justice Court of three
    counts of sexual assault, sexual interference, and invitation to sexual
    touching of his cousin, the complainant. The events were said to have occurred
    when the complainant was between the ages of 6 and 11 and the appellant was
    between 13 and 18. The complainant was 22 at the time of the trial, while the
    appellant was 30 years old. The appellant was sentenced to 6 months in custody
    followed by 3 months of community supervision, plus 18 months of probation. He
    appeals his convictions and sentence.

Facts

[2]

Three witnesses testified at the trial: the complainant, her mother and
    the appellant.

[3]

The parents of the complainant were separated when she was a baby, and
    on alternate weekends, beginning at about age one, she would sleep at the home
    where her father lived. During the relevant period, he lived with his mother,
    his sister, and his sisters son and infant daughter. The complainants grandmothers
    room was on the main floor. The appellant had a room in the basement, where
    there was also the only bathroom in the home that the family used, as well as a
    second room, where his mother and infant sister slept.

[4]

The complainant said that while she sometimes slept with her
    grandmother, most of the time she slept with the appellant in his room. She
    said that because she had a bed-wetting problem, she did not sleep with her
    grandmother. The appellant denied that the complainant ever slept in his bed
    with him or in his room. There was no other evidence on this issue. The trial
    judge concluded that, in light of the bed-wetting problem, it was reasonably
    possible that the complainant was consigned to the [appellants] bedroom to
    sleep.

[5]

The complainant testified that the first incident of sexual abuse
    occurred when she was about six years old and in senior kindergarten. She and
    the appellant were watching television in his bedroom on his bed. He removed
    her onepiece pyjama and the underwear she was wearing underneath. He started touching
    and rubbing her vagina. He also kissed her on the lips, but did not French kiss
    her. She said he was breathing very heavily because he had asthma. The incident
    ended when the grandmothers male friend came down the basement stairs to use
    the washroom and the appellant told the complainant to put her clothes back on.

[6]

Following this first incident, the complainant said that every time she went
    to her fathers house, the appellant would try something new. Sexual acts would
    occur repeatedly, including French kissing, touching her vagina, cunnilingus,
    analingus, fellatio and failed attempts at penetration with his penis. She said
    that the appellant would always take off her bottoms and leave on her top, that
    he did not wear a condom, and that he did not ejaculate. He called her baby,
    treated her like a girlfriend, and refused to stop when she told him to.

[7]

The complainant had an ongoing problem with bed-wetting, soiling
    herself, and smearing feces. The complainant testified that when she was 11,
    her mother repeatedly asked her why she did those things and what was wrong
    with her. She said this eventually led to her telling her mother about the
    sexual abuse. She said, D.H. is doing it to me, and although she did not give
    any details, her mother understood what she meant.

[8]

The mothers version was that when the complainant was 11 years old, she
    suspected from an incident where the complainant was playing under a blanket
    with her step-sister that the complainant had been abused by someone. The
    mother began to ask her about it. The complainant said that the mother never
    suggested inappropriate touching, while the mother said she asked the
    complainant directly whether anyone had touched her. Finally, after a number of
    weeks, the complainant responded, Yes, it had happened, and after being
    coaxed for the name, said it was the appellant.

[9]

The mother immediately called the appellants mother and told her, Your
    son molested my daughter, and, Your son touched my daughter. The complainants
    mother testified that she did not remember where the complainant was for the
    phone call. Although the mother said the call was not on speakerphone, she
    thought the complainant could have heard her repeat what was being said. The
    complainant testified the call was on speakerphone and that that was how she heard
    what was being said on the other end.

[10]

According to the complainants mother, the appellants mother was
    concerned for her own daughters safety, as well as about the effect of this
    revelation on the grandmother (her mother). According to the complainant, the
    appellants mother reacted with concern that the allegations would jeopardize
    the appellants imminent attendance at university.

[11]

The complainants mother said she then asked if the appellant was there
    and his mother gave him the phone. He acknowledged that he had touched her
    daughter; he said that he was just experimenting and that she could send the
    police because he knew what he had done was wrong. She asked him how he would
    feel, and he responded that a priest had done it to him. The complainants
    account of this part of the phone call was similar to her mothers, except she
    did not say that the appellant referred to calling the police, or specify that
    it had been a priest who had done something to him.

[12]

The complainants mother did not report the abuse to the police. She
    gave a number of explanations for this: she did not feel she had enough
    information to call the police, despite what the appellant had told her on the
    phone; she was discouraged by a colleague at work who said it was not enough;
    she did not think the police would do anything; she did not want the appellant
    to be hurt because he was family; and she thought both her daughter and the
    appellant should get counselling, which she told the appellants mother, but she
    knew that he did not get any counselling.

[13]

The complainants mother continued her relationship with the appellants
    mother. She never discussed the phone call with her daughter, but over the next
    ten years, pressed her for details of the abuse. However, the complainant did
    not disclose the details for many years, until sometime just before she went to
    the police in January 2012. According to the mother, the complainant also disclosed
    further details to her shortly before the trial.

[14]

The complainants mother also testified that when the complainant was in
    grade eight, after the disclosure of the sexual abuse and after the phone call,
    the mother held a birthday party where she invited the appellant and his
    mother. She explained that she did not think it would do any harm and that the appellants
    mother was still her friend and she did not hold anything against her. The
    mother testified that after the party, her daughter defecated in her clothes
    and smeared feces all over the stairs, but that this was the last time that
    happened.

[15]

The mother never took her daughter to the police, but left the decision whether
    to come forward up to her.

[16]

The complainant said that the first time she gave a detailed account of
    what happened was to the police in January 2012. She said she gave her mother
    details of the sexual abuse afterwards, not long before the trial.

[17]

The appellant testified and denied all the complainants allegations. He
    said he saw the complainant when she came on weekends, and while she sometimes
    slept in the basement in his mothers room, she did not sleep with him in his.
    He denied the phone conversation with the complainants mother. He also denied
    being at the birthday party described by the mother, and said he never saw the
    complainant again after she stopped coming to the house.

The Trial Judges Analysis

[18]

Defence counsel made a number of arguments to the trial judge. First,
    the appellant was straightforward and unshaken in his evidence, and he could do
    nothing but deny the historical allegations of events that were said to have
    spanned a long time period. Second, he submitted that the court should have
    significant concerns about the reliability of the Crowns evidence, given the complainants
    lack of disclosure for five years and her failure to complain to police for ten
    years.

[19]

Third, there was a lack of detail in the complainants description of
    the sexual acts, which were described generically. Fourth, there were
    discrepancies between the complainants statements to police and her testimony
    at trial, particularly with respect to the frequency of the sexual acts. Fifth,
    there were inconsistencies between the evidence of the complainant and her mother,
    such as whether the complainant cried when she was taken to her fathers on
    weekends or whether she was okay to go, as well as whether she stopped going at
    age 9 or age 11.

[20]

Sixth, the defence submitted the trial judge should not use the
    complainants very emotional manner of testifying to strengthen an otherwise
    weak Crown case. The complainant had great difficulty controlling her emotions
    while testifying at trial. There were repeated outbursts where she berated the
    appellant and his mother, who was in the courtroom. She described how unwell
    she was with Crohns disease and how the memories of the abuse and seeing the
    appellant in court made her sick. The trial judge described her manner as
    tormented.

[21]

The defence also submitted that the complainant had a reason to
    fabricate the allegations to her mother in order to respond to her mothers
    concerns about her bed-wetting, soiling, and the incident with her step-sister.

[22]

Finally, with respect to the phone call, the defence submitted that the
    appellant denied it, and that the mothers reasons for not calling the police
    after such a phone call were illogical and incredible.

[23]

The trial judge began her legal analysis and assessment of the evidence
    by first acknowledging the merit of the defence arguments, especially the
    difficulty an accused has in defending against allegations of historical sexual
    assault. She referred to the presumption of innocence and the burden of proof
    on the Crown to prove guilt beyond a reasonable doubt. She agreed that, in
    assessing the evidence of the complainant, she should not give too much weight
    to her demeanour as a witness. She also acknowledged the fact that there were
    inconsistencies between the complainants testimony and her mothers, and between
    what the complainant told the police and what she told the court. She further
    acknowledged that, in some cases, both the complainant and her mother could not
    recall dates or the complainants age at the relevant times.

[24]

After instructing herself on
R. v.
W. (D.)
, [1991] 1 S.C.R. 742
,
the trial
    judge first addressed the evidence of the appellant. She found that he was
    neither shaken in cross-examination nor inconsistent. However, relying on
R.
    v.
J.J.R.D.
(2006),

215 C.C.C. (3d) 252 (Ont. C.A.)
, she found that
    she did not believe the appellant, and that his evidence did not leave her with
    a reasonable doubt.

[25]

She then turned to an assessment of the complainants evidence, acknowledging
    that she was giving evidence as an adult of events that had occurred when she
    was a child. The trial judge further recognized the context of the
    complainants difficult childhood, where her mother worked two jobs and was
    separated from her father, and where the complainant had problems with
    bed-wetting and soiling herself, and slept at the foot of her mothers bed
    until she was 15.

[26]

In that context, the trial judge viewed the complainants difficulties
    remembering details of places and dates as peripheral matters that did not
    affect the acceptance of her evidence on the material points, which the trial
    judge found was consistent and unshaken. Those points were what happened the
    first time, the kinds of sexual acts, how they were performed, how the appellant
    behaved, and the details the complainant remembered that were not contradicted
    by the appellant.

[27]

The trial judge rejected the suggestion that the complainant had a
    motive to fabricate. She explained that finding in a sentence added as an
    amendment to the reasons: In arriving at that conclusion I have considered the
    quality of the relationship between the mother and daughter, as revealed in
    their testimony, the mothers disposition, her patience, her lack of animus,
    and the evidence of mother and daughter regarding how the disclosure occurred.

[28]

The trial judge also took into account the demeanour of the complainant while
    testifying, including her anger and torment, as well as her issues and
    disturbing behaviour as a child. The trial judge stated that, from that
    behaviour, one could draw the inference that the complainant had been
    experiencing abuse, although other inferences [were] possible. The trial
    judge stated that she considered this history as a factor in assessing the
    complainants credibility.

[29]

The trial judge then turned to the issue of the complainants
    reliability, given the fact that she was testifying as an adult about events
    that she said occurred in childhood. On the issue of the complainants
    reliability and the potential for contamination of evidence, the trial judge looked
    to the evidence of the mother. The trial judge noted that, like the complainant,
    she was vague or inconsistent on some details, such as dates and the age of the
    complainant at the relevant times, but the trial judge nonetheless found her to
    be credible and reliable on the material issues.

[30]

The trial judge found no evidence that the mothers questions had
    tainted the complainants evidence. She found the mothers inaction following
    the disclosure by her daughter and the appellants admission to her during the
    phone call to be consistent with a lack of animus towards the appellant, and
    also consistent with the complainants evidence that she did not give her
    mother any details of the sexual abuse. The trial judge explained that both the
    complainants and the appellants statements to the mother were general, so
    that the mother did not really know what had been done to her daughter.

[31]

The trial judge found the appellants admission on the phone to be
    confirmatory evidence. Although the appellant denied that the call took place,
    the trial judge believed the mother. The trial judge used what she viewed as
    the mothers extraordinary lack of animus towards the appellant and his
    family as indicative of her credibility regarding the phone call. She found nothing
    illogical or incredible about the mothers testimony that she continued to
    view the appellant and his mother as family, and that she did not want her
    daughter to be full of hatred.

Issues

[32]

The appellant submits the trial judge erred in law by failing to give
    effect to the third branch of
W. (D.)
by:

1.

failing to resolve material inconsistencies in the evidence on
    significant issues which could have raised a reasonable doubt, including:

a)

inconsistencies between the evidence of the complainant and of her
    mother;

b)

inconsistencies in the complainants versions of the frequency of the
    sexual abuse between her disclosure to the police and her evidence at trial;

2.

failing to give adequate reasons for drawing conclusions and inferences from
    the evidence of the mother and of the complainant that did not accord with the
    logic of the situation and were contrary to the evidence of the appellant; and

3.

relying on the complainants problems in childhood as evidence that she
    was sexually abused without expert evidence.

Analysis

1.

Failure to resolve material inconsistencies in the evidence on
    significant issues

[33]

The trial judge gave lengthy reasons for decision, including instructing
    herself on the burden of proof and the application of
W. (D.)
, and explaining
    why she found the complainant and her mother to be credible on what she identified
    as the material issues. It was only because she accepted their evidence that
    she rejected the evidence of the appellant, relying on this courts decision in
J.J.R.D.
, which states, at para. 53:

An outright rejection of an accuseds evidence based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    conflicting credible evidence is as much an explanation for the rejection of an
    accuseds evidence as is a rejection based on a problem identified with the way
    the accused testified or the substance of the accuseds evidence.

[34]

A trial judges assessments of credibility are accorded very
    considerable deference on appeal, as long as the trial judge has sufficiently
    explained how significant discrepancies that could undermine credibility and
    reliability have been resolved. This court recently reiterated that principle
    in
R. v. M. (A.)
, 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 17-19:

[W]here a case turns largely on determinations
    of credibility, the sufficiency of reasons must be considered in light of the
    deference generally afforded to trial judges on credibility findings. It is
    rare for deficiencies in a trial judge's credibility analysis, as expressed in
    the reasons for judgment, to warrant appellate intervention:
Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11;
Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

Nevertheless, the failure of a trial judge to
    sufficiently articulate how credibility and reliability concerns are resolved
    may constitute reversible error:
Vuradin
, at
    para. 11;
Dinardo
, at para. 26;
R. v.
    Braich
, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27, at para.
    23. After all, an accused is entitled to know why the trial judge had no
    reasonable doubt about his or her guilt:
R. v. Gagnon
, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17, 2006 SCC 17, at para.
    21.

Similarly, we take it as self-evident that a
    legal error made in the assessment of credibility may displace the deference
    usually afforded to a trial judge's credibility assessment and may require
    appellate intervention.

[35]

While a trial judge is not required to resolve every
    inconsistency in the evidence, the trial judge should address and explain how
    she or he has resolved major inconsistencies in the evidence of material
    witnesses:
G. (M.)

(1994)
, 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356;
R. v.
    Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31:
M.
    (A.)
, at para. 14. As the Supreme Court stated in

R. v. Dinardo
, at paras. 26-27, the failure to
    articulate how credibility concerns are resolved, particularly in the face of significant
    inconsistencies in a complainants testimony, may constitute reversible error,
    as an accused is entitled to know why the trial judge is left with no
    reasonable doubt.

a)

Inconsistencies
    between the evidence of the complainant and her mother

[36]

The appellant submits that although the trial judge acknowledged many of
    the inconsistencies between the evidence of the complainant and her mother with
    respect to the events that they both testified about, in accepting the evidence
    of both, she failed to resolve those inconsistencies or to explain how they
    factored into her conclusions.

[37]

One way the trial judge avoided the need to resolve some of the problems
    she perceived with the credibility of the complainants evidence, including
    when it conflicted with her mothers evidence, was by discounting them as referable
    to peripheral matters, as a trial judge is entitled to do:
R v. W. (R.)
, [1992] 2 S.C.R. 122, at pp. 134, 135-36.

[38]

One such matter was the complainants attitude
    when her mother took her to stay with her father and his family on weekends
    during the period of the abuse. The complainant testified that she cried every
    time she was dropped off at her fathers house and that she would say to her
    mother that she did not want to stay there. The mothers evidence was to the
    contrary. She said the complainant was fine going to her fathers house, never
    gave any indication she did not want to go, and did not ever cry or complain
    about it.

[39]

The trial judge dealt with this discrepancy by
    first finding that the mother corroborated much of the complainants childhood
    history of unhappiness and anger, frequent school moves, having no friends,
    blaming her mother, soiling her pants, and bed-wetting  although she was
    uncertain about the complainants age range for some of these behaviours. The
    trial judge then turned to the discrepancy between them about the complainants
    attitude with respect to going to stay at her fathers:

The mother did not, however, corroborate the
    complainants evidence that she cried when she had to go to her fathers house.
    She testified that the complainant gave her no reason to think anything was
    happening when she took her there. According to the mother, the complainant never
    resisted or cried, and seemed normal. She described the complainant as being
    outspoken, and she stated she was shocked the complainant hadnt told her
    about the abuse.

[40]

The trial judge did not expressly resolve this
    discrepancy or analyze its significance. She only dealt with it when assessing
    the credibility and reliability of the complainants evidence, where, after
    reviewing the difficulties she experienced during childhood, the trial judge asked
    rhetorically, Why would one conclude her evidence was unreliable because she
    remembers crying when her mother dropped her off at her cousins house, while her
    mother thought she seemed o.k. with it, and completely normal. The trial
    judge concluded that the complainants inconsistent or confused testimony on such
    peripheral matters did not prevent her from accepting the complainants
    evidence on the central events.

[41]

It appears that the trial judge was implicitly
    accepting the mothers version of this event by suggesting that the
    complainants recollection may have been unreliable because she was testifying
    as an adult about events during her very difficult childhood. However, if so,
    the trial judge provided no analysis as to why she concluded that the mothers
    memory was the correct one with respect to this particular event.

[42]

Furthermore, to characterize this as a
    peripheral matter was a misapprehension of the evidence. This was a significant
    issue in the narrative of the abuse time period and one of the few issues on
    which both the complainant and her mother were participating witnesses and
    about which they could testify directly. Nor could their evidence be reconciled:
    the complainant described a scene of crying and objecting to go  not just on
    one occasion, but every time  which the mother denied occurred at all.

[43]

If the complainant did in fact object to being
    left at her cousins house, that would have added credence to her allegations,
    but it would also have undermined the credibility of the mothers testimony. By
    implicitly accepting the mothers version, the trial judge avoided dealing with
    this issue with respect to her assessment of the mothers credibility. And by
    calling it a peripheral matter, even though it was part of the complainants narrative
    of the time of the abuse, the trial judge did not have to give a reason why she
    could rely on the complainants version of the abuse, but not on her
    contemporaneous reaction to it.

[44]

Another potentially significant area of
    inconsistency between the complainant and her mother was in how the disclosure
    occurred. The mother said that there was an occasion when the complainant was
    11, where she observed her under a blanket with her step-sister. The mother
    then became concerned that someone had done something to her daughter and began
    asking her if anyone had touched her inappropriately. She continued to ask for
    approximately six weeks until the complainant finally responded, Yes.  The
    mother then had to press her to find out who had done it, suspecting the
    step-brother or the mothers former boyfriend.

[45]

The mother indicated that about a couple of
    years before this incident, she had been asking her daughter about her problems
    with bed-wetting and soiling herself. However, after the incident with the
    step-sister, she was asking her if she had been touched.

[46]

The complainant, on the other hand, stated that
    her mother was asking her questions about her bed-wetting and defecating when
    she was 11. She said that it was in response to those questions that she
    finally acknowledged the abuse. She denied that her mother ever suggested that
    anyone had touched her inappropriately.

[47]

The trial judge referred to defence counsels
    argument that the complainant had a motive to fabricate in order to defend
    herself from her mothers questions regarding her bed-wetting and defecating.
    The trial judge found there was no motive to fabricate, relying in part on the
    evidence of both witnesses regarding how the disclosure had occurred. In so
    doing, she made no reference to the discrepancy in their accounts, and later in
    her reasons found that the mother and the complainant were roughly consistent
    about the general history of the complainants visits to the appellants home,
    about the complainants difficulties, including the bed-wetting and the
    soiling,
and about the circumstances of the complainants disclosure
,
    and the steps she did and did not take as a consequence (emphasis added). The
    trial judge also found there was no evidence that the mothers questions had
    tainted or contaminated the complainants evidence.

[48]

This characterization represents a failure by
    the trial judge to deal with the discrepancy in the two witnesses evidence regarding
    the disclosure. By not acknowledging the fact that, on the mothers account,
    she suggested to the daughter that she had been touched inappropriately, the
    trial judge failed to address the complainants possible motive to fabricate in
    the context of the mothers suggestion of the answer.

[49]

Also, by viewing the versions told by the two
    witnesses as roughly consistent, the trial judge failed to resolve the
    inconsistency or to consider its effect on the credibility and reliability of
    each of them, and therefore on the issue of reasonable doubt. See
R.
    v. Burnie
, 2013 ONCA 112, 294 C.C.C. (3d) 387, at para.
    48.

b)

Inconsistencies in the complainants versions given as an adult

[50]

Another issue that the trial judge labeled as
    peripheral was the complainants inconsistencies on the number of times she was
    abused by the appellant. In
R. v. H.S.B
.
, 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme
    Court allowed that a trial judge may treat this issue as peripheral when assessing
    an adult witnesss credibility in the context of remembering events from
    childhood.

[51]

The trial judge described the complainants
    accounts of the frequency of the abuse as wildly varying. She described those
    accounts in the following two paragraphs of the reasons:

After this first incident, the complainant
    stated that It just got worse and worse. She said that every time the accused
    would try something new. She said the sexual acts occurred repeatedly, but gave
    inconsistent answers to questions about how many times she was sexually abused
    by the accused. In her testimony in chief, she stated that she went to the
    accuseds home every second weekend, from ages 6 until 11, and that It
    continuously happened every time I was there. In her video statement to the
    police the complainant said it happened ten times. She stated that every time
    the accused was home, every time she slept in his room, it would happen  day
    or night  whenever she was alone with him, and he had the chance. She stated
    it probably happened more than once in a day, and probably thirty times. When
    it was put to her, in cross examination, that over the numbers of weekends and
    years she stated the abuse occurred, it would have happened 120 times, she
    agreed that this was possible.

In her video statement to the police, and in
    her testimony, the complainant also gave wildly varying estimates of the
    frequency with which the various sex acts were performed by the accused. She
    stated that after the first time, he had me do a lot of stuff, and that this
    happened every time except the first time, almost every time, probably
    three or four times, two times, ten times, and random times throughout
    the years he was molesting me. Ultimately she testified that she lost track
    of how many times. It just happened repeatedly. I got used to it.

[52]

The trial judge acknowledged these
    inconsistencies in her analysis of the complainants credibility and
    reliability, but discounted them on two bases. First, the complainant had such
    a troubled childhood, she could not be expected to remember the exact number
    of times or the exact way in which the sexual abuse occurred. As an adult
    witness, she testified that she lost track of the number of times and just got
    used to it. The trial judge found these statements credible and explanatory.
    Second, the frequency of the abuse was a peripheral matter.

[53]

While this analysis follows the Supreme Court
    jurisprudence in assessing the evidence from the perspective of an adult
    recalling terrible events from her past, it takes no account of the
    complainants inconsistency in recounting the events to the police as an adult,
    then to the court the next year, going from abuse occurring 10 times to
    possibly 120 times, and the effect of this inconsistency on the credibility and
    reliability of her account in her evidence. As this court stated in
M.
    (A.)
, at para. 12, one of the most valuable means of
    assessing witness credibility is to examine the consistency between what the
    witness said in the witness box and what she has said on other occasions.

[54]

The complainant went to the police as an
    adult and reported her story. Although the trial judge was entitled to treat
    the frequency of the abuse as a peripheral matter in terms of an adult
    recalling events from childhood, the trial judge failed to also treat and
    assess the major inconsistency between the complainants report to the police
    and her trial evidence the next year about the number of times the sexual abuse
    occurred, as a prior inconsistent statement. She failed to consider how this
    significant change in the complainants memory should be viewed in the context
    of both her credibility and reliability in recounting the events in a formal
    context with legal consequences.

2.

Failure
    to adequately explain significant conclusions and inferences from the evidence
    of the complainant and of the mother that did not accord with the logic of the
    circumstances

[55]

The trial judge accepted the evidence of the
    complainant on the issue of where the complainant slept when she stayed at her
    fathers place on weekends, a critical issue of dispute between the complainant
    and the appellant. There was no other evidence on the issue. The complainant
    testified that she would not sleep with her grandmother because she wet her
    bed. The trial judge acknowledged that the sleeping arrangements were relevant
    in light of the appellants denial that the complainant ever slept with him.
    The trial judge concluded that, in light of the complainants bed-wetting problem,
    it was reasonably possible that the complainant was consigned to the accuseds
    bedroom to sleep.

[56]

This reasoning by the trial judge did not
    address the obvious issue with this conclusion  that the complainant also
    would have the bed-wetting problem in the appellants bed  and how a teenage
    boy would react to having a small girl wet his bed on a semi-regular basis. The
    other issue not considered by the trial judge was the likelihood of adults like
    the aunt and grandmother putting a young girl in the same bed as a teenage boy.

[57]

Again, it was open to the trial judge to make
    the finding she did, if she could explain her conclusion on the basis of the
    evidence before her. However, in light of the appellants denial, the trial
    judge was obliged to show that she considered the problems with the evidence,
    and explain how she decided to believe the complainant in the face of those
    problems.

[58]

The second important example of this problem
    with the trial judges analysis related to the evidence of the incriminating
    phone call. The trial judge accepted that the mother had a phone conversation
    with the appellant when he was 18, where he admitted that he sexually abused her
    daughter. The appellant denied it. The trial judge found the mothers evidence
    to be corroborative of the evidence of the complainant. It was obviously of
    critical importance.

[59]

The final branch of the trial judges analysis
    of the Crown case was her assessment of the evidence of the mother, and in
    particular, the mothers reaction to the disclosure of the abuse by her
    daughter and the immediate admission of guilt by the appellant.

[60]

In recounting the evidence of the witnesses, the
    trial judge described how, following the critical telephone call with the
    appellant, the mother did not immediately call the police. The mother gave
    several explanations for this. One was that she did not feel she had enough
    information to call the police, regardless of what the appellant had told her
    on the phone. She also felt that because the appellant was family, although he
    had already hurt her daughter, she did not want to hurt him. She thought the
    best way to deal with what had occurred was for both her daughter and the appellant
    to get counselling, although she testified that she knew he never did.

[61]

The trial judge found it [m]ost extraordinary
    of all that the mother did not end her relationship with her sister-in-law,
    the appellants mother, but remained friends with her and continued to talk to
    her.

[62]

Therefore, in her analysis of the credibility of
    the evidence of the mother, and in particular that the incriminating phone call
    with the appellant had taken place, despite his denial, the trial judge had to
    deal with the extraordinary reaction of the mother to the disclosure of the
    abuse of her daughter.

[63]

She found there was nothing in the evidence to
    suggest why the mother would fabricate her evidence. The trial judge reasoned
    that the mothers extraordinary lack of animus towards the appellant and his
    family was what gave her account credibility. She found nothing illogical or
    incredible about the mothers desire to maintain good relations with the
    appellant and his mother as family, or about the fact that she did not hate
    them and did not want her daughter to do so either.

[64]

With respect to the trial judge, this reasoning
    is conclusory and insufficient to explain her decision to accept this evidence.
    As she had observed earlier, the mothers reaction to the disclosure that her
    daughter had been sexually abused by her cousin was extraordinary. The mother
    failed to call the police to protect her 11-year-old daughter and to hold the
    appellant accountable. Her explanation that she did not think she had enough
    information to call the police when the appellant had confessed to her was
    illogical. She also invited the appellant to her home for a birthday party,
    knowing her daughter would be present and would have to face the person who she
    said had sexually abused her.

[65]

The trial judge did not explain how the mothers
    lack of animus  animus that one would normally expect from a mother against
    someone who had hurt her child in an egregious way  supported her credibility.
    That is, she did not explain the logic of using a reaction that one would not
    expect from a mother to bolster her credibility as a witness, rather than
    undermine it.

[66]

Although the trial judge was entitled to accept
    the evidence of the mother with respect to the phone call, in light of the
    appellants denial, it was incumbent on the trial judge to give a basis for her
    finding that bears scrutiny.

3.

Effect of
    the Crowns failure to call expert evidence

[67]

The appellant also submits that the trial judge
    erred by giving weight in her analysis to an inference of sexual abuse drawn
    from the complainants behavior in childhood  including bed-wetting, soiling
    herself and acting out  without expert evidence. The Crowns position is that
    the trial judge was careful not to draw this inference, but only used these
    behaviours as part of the complainants history in the assessment of her
    credibility.

[68]

A close reading of the reasons supports the
    position of the Crown that the trial judge acknowledged that an inference of
    abuse could be drawn from the complainants history, but that other inferences
    were also possible. The trial judge said: In this context the history is a
    factor to be weighed in assessing the complainants credibility, and I have
    taken it into account. I would not give effect to this ground of appeal.

Conclusion

[69]

In applying the burden of proof beyond a
    reasonable doubt and using the rule in
J.J.R.D.
, the trial judge rejected the testimony of the appellant and found
    it did not raise a reasonable doubt because she accepted as true the evidence
    of the complainant and her mother.

[70]

The trial judge was entitled to make those
    findings, as long as she gave adequate reasons that explained how she resolved material
    inconsistencies and discrepancies on significant matters in the evidence she
    accepted.

[71]

In my view, the totality of the errors by the
    trial judge in failing to resolve important discrepancies in the evidence, or
    failing to do so in a cogent manner where required, undermines the reliability
    of her analysis; it does not amount to a considered and reasoned acceptance
    beyond a reasonable doubt of the truth of the conflicting credible evidence of
    the Crown case, in accordance with
J.J.R.D
.
, and constitutes reversible error. See also
M. (A.)
, at paras. 18-19, 27.

[72]

I would allow the appeal, set aside the
    convictions and order a new trial. As a result, I have not addressed the
    sentence appeal.

Released: July 15, 2016 (K.F.)

K. Feldman J.A.

I agree. E.A. Cronk J.A.

I agree. L.B. Roberts J.A.


