



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. T.A., 2020 ONCA 783

DATE:
    20201211

DOCKET:
    C67552

Simmons,
    Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty
    the Queen

Respondent

and

T.A.

Appellant

Lauren M.
    Wilhelm, for the appellant

Jerry
    Brienza, for the respondent

Heard:
    November 16, 2020 by video conference

On appeal from the conviction entered on
    June 28, 2019 by Justice Catrina D. Braid of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was charged with indecent assault
    of his niece,
[1]
B.F., and sexual assault and sexual interference in relation to B.F.'s son,
    J.F. The charges involving B.F. related to the period January 1, 1976 to
    January 1, 1978; those involving J.F., January 1, 2011 to January 1, 2015.

[2]

Following a 2019 trial, the trial judge found
    the appellant not guilty of the charge involving B.F., but guilty of the
    charges involving J.F. The sexual assault charge was ultimately conditionally
    stayed pursuant to
Kienapple.
[2]


[3]

The appellant appeals from his conviction for
    sexual interference. The main issues on appeal are whether the trial judge
    erred by approaching the conflicting evidence as a credibility contest and
    further erred by misapplying the principles in
J.J.R.D
.
[3]

[4]

For the reasons that follow, the appeal is
    allowed, the conviction set aside and a new trial is ordered.

Background

[5]

J.F. testified he was about six years old when
    the incident giving rise to the charges occurred. Together with his other
    evidence, this likely placed the events in the early summer of 2013.

[6]

The appellant lived next door to J.F.'s
    grandparents. On an occasion when he was visiting his grandparents, J.F. went
    to the appellant's house with his Hot Wheels Collectors Catalogue intending to
    assess the value of a collection of toy cars at the house.

[7]

According to J.F., he was sitting on the floor
    in an upstairs bedroom where the cars were located. The appellant came into the
    room, scooped him up, put him on the bed, pulled down his pants and underwear
    and then rubbed, licked and kissed J.F.'s penis. The incident lasted about two
    to three minutes. It ended abruptly when J.F.'s grandmother arrived at the appellants
    home and called J.F. downstairs. J.F. did not see the appellant again that day.
    And he did not discuss the cars with the appellants wife on that occasion.

[8]

J.F. testified that he did not immediately tell
    anyone about the incident because, some time previously, the appellant read him
    a book about monsters and whispered to J.F. that he could control monsters.
    J.F. said that scared him. When asked if anything else scared him, J.F.
    testified the assault may have happened twice. He was not sure, events had blended
    together into one big blob. If there was a second time, it was the same as
    the first time except he did not have his Hot Wheels Collectors Guide with him.

[9]

J.F. disclosed the incident to his mother in
    March 2018 after similar allegations were made by the appellant's granddaughter
    and grandson, J.F.s best friend. Those charges were ultimately withdrawn. J.F.
    knew that his mother was upset about the charges being withdrawn.

[10]

J.F.'s grandmother, S.P., testified that B.F.
    had instructed her not to let J.F. go to the appellant's home alone when the
    appellant was present. S.P. recalled that, on one occasion during the summer,
    when J.F. was about six, she sent J.F. to the appellant's house while she
    finished baking a cake, believing the appellant was not there. However, when
    she went over to the house and called upstairs for J.F. to come home, to her
    surprise, the appellant came down the stairs.

[11]

The appellant testified and denied the
    allegations. He explained that he worked in the aircraft industry and traveled
    globally to provide aircraft engineering and other services in several sectors,
    including the U.S. military sector. When he traveled, he could be away for a
    long time, as much as a year or more. He said he had never been upstairs alone
    with J.F., and had never read him a book about monsters, or for that matter any
    other book. Indeed, he said that he had never read books to his own children.

[12]

In cross-examination, the appellant was asked
    where he was working between 2011 and 2015. He said recently he had spent a lot
    of time in El Paso, Texas and San Marcos, Texas. When asked by the trial judge to
    focus on 2011 to 2015, he said those were the places where he was consistently.
    But he had also been to other places. When asked about duration, he said in
    2015 he spent over a year in El Paso. In response to the Crowns suggestion
    that the timeline concerning when he was home between 2011 and 2015 was a
    little fuzzy, he responded that he would be in and out a lot, so he did not
    keep a record of time.

[13]

The appellant's wife, C.A., said J.F. came to
    their home unaccompanied around four times. She was home alone on those
    occasions and the appellant was not present. When asked during examination
    in-chief if the day S.P. was baking a cake provided her with any point of
    reference, C.A. said that could be the day J.F. was playing upstairs with her
    grandchildren.

[14]

However, C.A. did recall a day when J.F. came
    over with his Hot Wheels Catalogue. She testified that happened once. When
    referred to the 2011 to 2015 timeframe in the indictment, she thought it would
    be closer to the 2014, 2015 years. C.A. testified that the appellant was not
    present on the occasion when J.F. came over with the Hot Wheels Catalogue. He
    was either in Texas or Wyoming or Ohio. Depending on the year, he could have
    been away anywhere from a year to six months.

[15]

C.A. recalled that she was in the living room reading
    a book. While looking at the cars, J.F. came downstairs from time to time to
    tell her about the value of the cars.

[16]

In cross-examination, C.A. confirmed that J.F.
    came over unaccompanied four times. She described the purpose of his visit on
    each occasion and clarified that she did not know about any day that S.P. was
    baking a cake. However, she agreed that the day J.F. came over with his Hot
    Wheels Catalogue was a memorable detail.

[17]

Although C.A. initially testified that she
    thought the Hot Wheels visit happened in 2014 or 2015, she agreed J.F. would
    have been six in the summer of 2013. In response to the suggestion that she did
    not know where the appellant was when the alleged incident happened, she
    asserted that she knew where he was in 2013, 2014 and 2015. In 2013, he was in
    El Paso, Texas from May until the following May. After he came home, the couple
    separated for a while. In 2015, the appellant was in Wyoming from October until
    March 2016. C.A. reiterated that the appellant was not home on the day of the
    Hot Wheels visit.

The trial judge's reasons

[18]

The trial judge focused the initial part of her
    analysis on J.F.s testimony and the reliability and credibility of his
    evidence. During the course of that portion of her analysis, she considered the
    [c]onflicting evidence regarding when J.F. was upstairs in [the appellants
    home]. She noted that defence counsel had argued that J.F. said he was only at
    the appellants home with his Hot Wheels Catalogue on one occasion. She said if
    this were true and she was unable to reject C.A.s evidence that the appellant
    was not home on that day, C.A.s evidence may give rise to a reasonable doubt.

[19]

As for C.A.s evidence that the appellant was
    not home on the day that J.F. came over with his Hot Wheels Catalogue, the trial
    judge noted that J.F. did not say that the day the incident occurred was the
only
day he
    went over with his Catalogue. Further, J.F. said he did not show the
    appellant's wife the cars and the Catalogue on the day the offence occurred.
    Concerning this evidence, the trial judge concluded:

I am not satisfied that C.A.s evidence
    provides a reasonable doubt or definitively tells me what occurred on this
    particular occasion. It may be that she was talking about a different occasion,
    I cannot be certain.

[20]

In response to a defence argument that there was
    no opportunity for the appellant to read the book about monsters to J.F. and
    that the evidence was fabricated, the trial judge said she accepted J.F.s
    version of events as credible on this point. She said she would return to the
    issue later in her reasons.

[21]

Although J.F. testified he was moderately
    confident that a second incident occurred, the trial judge was not satisfied
    that was the case. She noted that J.F. was certain that the first event
    occurred and was clear and articulate in his description of that event. She
    concluded that the fact that J.F. said there may have been a second incident
    that occurred in exactly the same fashion did not undermine his reliability and
    credibility in relation to the first incident.

[22]

Ultimately, the trial judge found J.F. a
    credible witness. While she acknowledged some inconsistencies in his evidence
    in relation to other evidence, she found they related generally to peripheral
    matters such as timing and sequence and that the core details of his account
    were corroborated by the evidence of adult witnesses. She concluded he was both
    reliable and credible.

[23]

After reaching this conclusion, the trial judge
    turned to the defence evidence. She identified some minor issues with that evidence:

·

the appellant gave an inaccurate answer to the
    police when he said no in response to a question whether J.F. came over to
    visit. However, his explanation that J.F. was not visiting him but rather his
    grandchildren was not unreasonable;

·

the appellant's evidence about his work schedule
    and travel especially concerning the time of the alleged events was vague; and

·

the defence evidence concerning where the
    appellant was working at the time of the alleged events was inconsistent, the
    appellant saying Texas, his wife, C.A., saying Wyoming.

[24]

The trial judge concluded her reasons with a section
    she titled 
W.(D.)
Analysis.
    She began this analysis by saying:

The testimony of J.F. and [the appellant] are
    diametrically opposed. They cannot both be telling the truth.

[25]

She then stated that because the appellant called
    evidence, she was required to apply
W.(D.)
[4]
. She
    began by noting that the appellant adamantly denied the allegations and that
    there was nothing more he could do or say in a case of this nature. However,
    she found herself in the same position as the trial judge in
J.J.R.D
.
    There was nothing in the substance of the appellant's evidence or in the manner
    in which he testified that would cause her to reject his evidence. Nonetheless,
    she said,

However, based on the totality of evidence
    which I do accept, I must reject it.
It simply cannot be true.
I am
    entitled to take into account the strength of the Crown's case and reject [the
    appellant's] evidence based on a considered and reasoned acceptance of the
    conflicting evidence from the Crown's witnesses. This is a sufficient basis upon
    which to reject an accused's evidence.

I therefore find the Crown has proven, beyond
    a reasonable doubt, [the offences]. [Emphasis added; citations omitted.]

Discussion

[26]

We accept the appellants argument that the
    trial judge erred by approaching the conflicting evidence in this case as a
    credibility contest and failing to properly consider reasonable doubt.

[27]

It is noteworthy in our view, that the trial
    judge began her
W.(D.)
analysis by observing that the evidence of the appellant and J.F. was
    diametrically opposed and stating, [t]hey both cannot be telling the truth.
    Such a statement is the antithesis of a
W.(D.)
analysis, which requires the trier of fact to consider whether,
    even if she does not accept the defence evidence, she is still left with a
    reasonable doubt by it.

[28]

It is not the task of a trier of fact to
    determine which of two versions of an event is true. Rather, the triers task
    is to determine whether the Crown has met its burden of proving the elements of
    an offence beyond a reasonable doubt. As Cory J. held at p. 757 of
W.(D.)
:

It is incorrect to instruct a jury in a
    criminal case that, in order to render a verdict, they must decide whether they
    believe the defence evidence or the Crown's evidence. Putting this either/or
    proposition to the jury excludes the third alternative; namely, that the jury,
    without believing the accused, after considering the accused's evidence in the
    context of the evidence as a whole, may still have a reasonable doubt as to his
    guilt.

[29]

A finding that a complainant is both reliable
    and credible is not sufficient to satisfy the burden of proof beyond a
    reasonable doubt. As noted by this court in
R. v.
    J.W.
, 2014 ONCA 322, 316 O.A.C. 395, at para. 26: a
    reasonable doubt can survive a finding that the complainant is credible.

[30]

Here, the trial judge purported to rely on
J.J.R.D.
to support her rejection of
    the appellants evidence and to justify her finding that the Crown met its
    burden of proof. However, what the trial judge failed to do was consider
    whether the evidence, as a whole, raised a reasonable doubt.

[31]

Nowhere in her
W.(D.)
analysis does the trial judge refer to reasonable doubt. In both
    the opening and concluding statements of her analysis, she refers to the fact
    that the two versions of the event (namely, that it happened and that it did
    not happen) cannot both be true. Although that may be accurate as far as it
    goes, it fails to address the fundamental issue of reasonable doubt or reflect
    an appreciation that what was at issue was not a credibility contest. Rather,
    it was whether the Crown had proven guilt beyond a reasonable doubt.

[32]

Further, although she referred to reasonable
    doubt elsewhere when she recognized the possibility that C.A.s evidence could
    raise a reasonable doubt if J.F. had been to the house with his Hot Wheels
    Catalogue on only one occasion, the trial judge assessed the question whether
    C.A.s evidence raised a  reasonable doubt in relation to only one aspect of
    the evidence.

[33]

Specifically, in closing submissions, defence
    counsel asserted that J.F. testified he went to the appellants house with his
    Hot Wheels Catalogue only once. In her reasons, the trial judge said she
    relistened to J.F.s evidence and he did not make such a statement. However, in
    considering this issue, the trial judge did not refer to C.A.s evidence that
    J.F. had been to her house with the Hot Wheels Catalogue on only one occasion. Had
    she considered that evidence, she would also have had to consider the lack of specific
    evidence from J.F. concerning how many times he had been to the house with his
    Hot Wheels Catalogue.

[34]

The trial judge also mistakenly concluded that
    the appellants evidence and C.A.s evidence were inconsistent on the issue of
    where the appellant was when the offence was alleged to have occurred.

[35]

The trial judge said the appellant was in Texas
    while C.A. said he was in Wyoming. However, that does not accurately reflect
    their evidence. On J.F.s evidence, the offence most likely occurred in the
    summer of 2013. The appellant and C.A. both identified Texas as the appellants
    destination in 2013.

[36]

To invoke
J.J.R.D.
, a trial judge must assess the whole of the evidence and reject the
    defence evidence based on a considered and reasoned acceptance of the Crowns
    evidence:

An outright rejection of an accused's 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 accused's evidence as is a rejection based on a problem
    identified with the way the accused testified or the substance of the accused's
    evidence:
J.J.R.D.
, at
    para. 53.

[37]

Here, we are not satisfied that the trial judge
    fulfilled the
J.J.R.D.
requirements. She failed to assess the whole of the evidence or to do so
    accurately in considering whether it was capable of raising a reasonable doubt.

[38]

Further, we conclude that the trial judge
    approached the
W.(D.)
analysis as a credibility contest rather than what it is: a method of assessing
    whether the Crown has met its burden of proving guilt beyond a reasonable
    doubt.

[39]

Based on the foregoing reasons, we allow the
    appeal.

Conclusion

[40]

The appeal is allowed, the conviction is set
    aside, and a new trial is ordered.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.





[1]
The appellants wifes sister is B.F.s mother.



[2]

Kienapple v. The Queen
,
    [1975] 1 S.C.R. 729.



[3]

R v. D. (J.J.R.)
(
2006)
, 215 C.C.C. (3d) 252
(Ont. C.A.),
leave to appeal refused, [2007]
    S.C.C.A. No. 69.



[4]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


