



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

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

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. O.M., 2014 ONCA 503

DATE: 20140704

DOCKET: C54107

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.M.

Appellant

Brian Snell, for the appellant

Stacey D. Young, for the respondent

Heard: March 5, 2014

On appeal from the convictions entered on June 8, 2010 by
    Justice W. Brian Trafford of the Superior Court of Justice, sitting without a
    jury.

Cronk J.A.:

A.

introduction

[1]

The appellant, O.M., was charged on a multi-count indictment with a
    series of historical sexual assaults and related offences involving his three daughters,
    T.P, L.W., and A.S., and assault
simpliciter
charges regarding A.S.  The
    incidents were alleged to have occurred when T.P. was 10 or 11-years old, L.W.
    was 13-years old, and A.S. was approximately 15-years old, on occasions when
    they were visiting the appellant or, in the case of A.S., when she was briefly
    living with him and his common-law wife, D.R.

[2]

In June 2010, following a trial by judge alone, the appellant was
    convicted of three counts of sexual assault (all three complainants), two
    counts of sexual interference (T.P. and L.W.), and one count of sexual
    exploitation and two counts of assault
simpliciter
(A.S.).  On
    September 23, 2010, he was sentenced to 42 months in jail.

[3]

The appellant appeals his convictions on numerous grounds.

B.

facts

[4]

The appellant is the biological father of the complainants, each of whom
    was born to a different mother.  The complainants lived with their respective mothers
    in childhood, separate and apart from the appellant.  When they were each about
    8 to 10 years of age, they began to spend time with their father.

[5]

By the time of trial, T.P. was 16 years of age.  She testified about
    four incidents of sexual assault by the appellant that she said occurred when
    she was 10 or 11-years old and visiting her father and D.R.  T.P. said that, on
    each occasion, she awoke from sleep to find the appellant touching or
    attempting to touch her vagina, either directly or over her clothing.

[6]

L.W. was 24-years old by the time of trial.  In her evidence, she
    recounted one instance of sexual assault by the appellant that she said had
    occurred in 1998 when she visited him in Windsor, Ontario, for her 13th
    birthday.  She said that, during this visit, she was awakened from sleep by the
    appellant touching her vagina with one or two fingers.

[7]

A.S. was 20-years old when she testified.  She described a sexual
    assault arising out of an incident in August 2005, when she was 15-years old
    and living with the appellant and D.R.  A.S. said that she was up late one
    night when the appellant arrived home and began making sexually inappropriate
    remarks to her.  She felt uncomfortable and went to the bathroom.  The
    appellant came into the bathroom and closed and locked the door behind him.  He
    placed his hands on A.S. and started moving them up and down the sides of her
    breasts to her waist.  He eventually put his hand into her pants, and attempted
    to digitally penetrate her vagina, over her underwear.  A.S. was crying and
    repeatedly asked the appellant what he was doing.  She eventually pushed the
    appellant away and left the bathroom.

[8]

A.S. also said that the appellant physically abused her at various times
    between July 2005 and June 2006, when she was 15 and 16-years old.  She testified
    that, on a number of occasions, the appellant became upset with her and slapped
    her, making her nose bleed.  On one occasion in March 2006, the appellant
    grabbed her by the neck, put her in a chokehold, and punched her in the face
    and head.  A.S. also said that in June 2006, in a separate incident, the
    appellant assaulted her with a baseball bat.

[9]

The appellant testified.  He denied that he sexually assaulted any of
    the complainants.  With respect to A.S.s physical assault allegations, he admitted
    that he once hit A.S. in the face, but said that she suffered no injuries.  He
    claimed that he never struck A.S. on any other occasion.

[10]

The
    appellants common-law wife, D.R., also testified.  Much of her evidence confirmed
    the appellants denials of any unlawful conduct in relation to his daughters. 
    D.R. figured prominently in T.P. and A.S.s narrative of events.  According to
    T.P., D.R. returned home at the end of one of the assaultive incidents
    involving T.P., participated in two of the assaultive incidents by allegedly
    intervening in support of T.P. and, on another occasion, permitted the
    appellant to take T.P. to a hotel where one of the alleged sexual assaults
    occurred.  A.S. testified that she complained to D.R. about the appellants
    sexual assault of her.  Thus, on both T.P. and A.S.s accounts, D.R. was aware
    of the appellants assaultive conduct.  D.R., however, denied that she was
    aware of or had witnessed, participated in, or been told of any of the
    assaultive incidents.

C.

trial judges decision

[11]

The
    Crown brought a similar act application at the outset of trial.  For reasons I
    will discuss later, the trial judge dismissed the application.  His ruling on
    this application is not at issue on this appeal.

[12]

As
    a result of his ruling on the similar act application, the trial judge
    undertook detailed and separate reviews of the evidence of each complainant. 
    He found that their descriptions of the essential nature of the assaults they
    claimed to have suffered were more or less consistent (T.P.) or substantially
    consistent (A.S. and L.W.) in their police statements and in their testimony
    at the appellants preliminary inquiry and at trial, and that the frailties in
    their evidence did not significantly detract from the substance of their
    accounts of the offences of which the appellant was convicted.

[13]

The
    trial judge considered, and rejected, the appellants evidence regarding the
    events at issue, specifically, his denials of the assaultive incidents.  He
    also rejected D.R.s evidence where it confirmed the appellants denial of the
    complainants allegations.

[14]

In
    his reasons, the trial judge averted to the Crowns burden of proof, referenced
    the principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, 63 C.C.C. (3d)
    397 concerning reasonable doubt, and those set out in
R. v. W.(R.)
, [1992]
    2 S.C.R. 122, 74 C.C.C. (3d) 134 governing the assessment of childrens
    testimony, and reviewed other factors relevant to the credibility and
    reliability of each of the witnesses.  He ultimately held that the Crown had
    met its burden of proof to the requisite criminal standard and that the whole
    of the evidence did not give rise to a reasonable doubt regarding the
    appellants culpability for the crimes of which he was convicted.

D.

issues

[15]

The
    appellant mounts a multi-faceted attack on the trial judgment.  Broadly stated,
    he principally argues  that the trial judge erred:

(1)

in his
    approach to the evidence at trial, in several respects;

(2)

in his
    treatment of certain of the evidence concerning the alleged sexual assault of L.W.;

(3)

in his
    assessment of A.S.s credibility, by ignoring his own self-direction arising
    from
Vetrovec

v. The Queen
, [1982] 1 S.C.R. 811, 136 D.L.R.
    (3d) 89; and

(4)

by finding
    that the Crown had established a lack of motive by the complainants to
    fabricate.

E.

analysis

(1)

Trial Judges Approach to the Evidence

[16]

The
    appellants overarching contention is that the trial judges assessment of the evidence
    is infected by what he terms a 
Gostick
error.  In
R. v. F.(J.)
(2003), 177 C.C.C. (3d) 1, at para. 90, this court summarized the decision in
R.
    v. Gostick
(1999), 137 C.C.C. (3d) 53 (Ont. C.A.) in these terms:

In [
Gostick
]  this court warned against an approach
    to the evidence which bases credibility decisions on demeanour, approaches the
    evidence with a harsher standard of scrutiny for the defence than for the Crown
    witnesses and which accepts the complainants evidence as true, then proceeds
    to discredit the contrary evidence.  [Citations omitted.]

[17]

The
    appellant maintains that each of these errors is manifest in this case.  As set
    out in his factum, he submits that:

Rather

than

focusing

on whether there was a reasonable doubt, the trial judge set out to
    decide whom to believe.  He believed the complainants  and thereby discredited
    the defence evidence for that reason alone, while minimizing or ignoring
    inconsistencies, improbabilities and gaps in the complainants evidence.

[18]

I
    would reject this submission.

[19]

At
    the outset, I emphasize that the trial judges appreciation of the evidence and
    his credibility and reliability findings attract significant deference from
    this court.  Absent palpable and overriding error, there is no basis for
    appellate intervention with the trial judges rulings on these issues:
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20, citing
H.L.
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1 S.C.R. 401;
R. v.
    D.T.
, 2014 ONCA 44, at paras. 76 and 80;
R. v. Dinardo
, 2008 SCC
    24, [2008] 1 S.C.R. 788, at para. 26.  The consideration of the appellants
    challenges to the trial judges assessment of the evidence and his factual
    findings must proceed with this deferential standard of review at the
    forefront.

(a)

Treatment of Frailties in the
    Complainants Evidence

[20]

Relying
    on
Gostick
, the appellant argues that the trial judge erred by ignoring,
    minimizing or improperly discounting inconsistencies, improbabilities and gaps
    in the complainants evidence identified by the defence at trial.

[21]

I
    disagree.  In my view, the trial judges reasons indicate that he was alert to
    the major weaknesses in the testimony of each complainant and took specific
    account of them when assessing their credibility and reliability.

[22]

It
    is unnecessary to recite the many deficiencies in the complainants evidence
    emphasized by the appellant at trial.   The important point is that when his reasons
    are read as a whole, it is clear that the trial judge appreciated the frailties
    in the complainants evidence relied on by the defence, specifically and carefully
    considered many of those frailties, and assigned to them the weight that he regarded
    as appropriate.

[23]

For
    example, with respect to T.P., the trial judge identified numerous inconsistencies
    in her testimony regarding the assaultive incidents that she described.  He
    also addressed aspects of her evidence that he viewed as inherently
    implausible.  In each instance, he explained why he did not regard these
    inconsistencies and implausibilities as detracting from T.P.s overall credibility
    and reliability concerning the core of her abuse allegations.  Similarly, in
    respect of A.S. and L.W., the trial judge considered many of the
    inconsistencies relied on by the defence and provided specific reasons why, in
    his view, they were of only minor or peripheral significance.

[24]

The
    trial judges careful approach to the assessment of A.S.s credibility and
    reliability is particularly noteworthy.  A.S. alleged that her father engaged
    in a course of physical abuse of her between July 2005 and June 2006 
    ultimately involving an assault with a baseball bat in June 2006  and that he sexually
    assaulted her in August 2005.  The trial judge noted the evidence of A.S.s
    history of emotional difficulties, including several failed suicide attempts
    and suicidal ideation.  He was also mindful that no expert evidence was called
    at trial concerning the impact, if any, of A.S.s emotional condition on her
    ability to observe, recollect and narrate the circumstances of an alleged
    offence.

[25]

In
    these circumstances, the trial judge decided to be exceptionally cautious in
    his assessment of A.S.s credibility and reliability in determining the
    appellants guilt or innocence.  As I will discuss further in these reasons, he
    therefore refused to accept her testimony about the assaults she alleged, as
    proof beyond a reasonable doubt of the alleged incidents, absent confirmatory
    evidence.

[26]

This
    approach undoubtedly favoured the defence.  So, too, did the trial judges
    decision to treat each of the physical assaults alleged by A.S. as a separate
    assault requiring proof by the Crown beyond a reasonable doubt, notwithstanding
    that A.S. alleged, in effect, one continuing course of physically assaultive conduct
    by the appellant for about one year.  As the trial judge noted, this was a
    more rigorous standard [of evaluation] than the defendant was entitled to on
    the physical assault charges.

[27]

These
    measures reveal the trial judges careful approach to the assessment of A.S.s
    credibility and reliability.  The trial judges wary approach to A.S.s evidence
    undermines the suggestion that he ignored, minimized or improperly discounted
    the frailties in her testimony.  Indeed, it suggests exactly the opposite.

[28]

Moreover,
    the trial judge was not obliged to address each piece of evidence and every
    alleged inconsistency in the complainants evidence posited by the defence:
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32 and 64;
Dinardo
,
    at para. 30;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para.
    17.  That he did not assign the same significance to the deficiencies in the
    complainants evidence urged by the defence does not mean that his treatment of
    them was flawed.

[29]

I
    note that the appellant also argues that the trial judge erred by addressing
    the deficiencies in each complainants evidence in a piece-meal fashion, rather
    than considering whether, viewed as a whole, they gave rise to a reasonable
    doubt.

[30]

Again,
    I disagree.  On several occasions, the trial judge expressly stated that he had
    assessed the vulnerabilities in the complainants evidence both individually
    and collectively, and in the context of the evidence as a whole.  His reasons
    afford no basis to conclude that he did not do precisely what he said he had
    done.

[31]

I
    would reject this ground of appeal.

(b)

Demeanour

[32]

I
    also do not accept the appellants argument, advanced primarily in his factum,
    that the trial judge placed improper or disproportionate reliance on the
    complainants demeanour while testifying.

[33]

The
    trial judge regarded T.P.s and A.S.s tearful demeanour and, in T.P.s case,
    her voice tone, at various points during their testimony as relevant to the
    assessment of their credibility and the reliability of their evidence on the
    points at issue.  Although less particularized in his reasons, I accept that in
    evaluating her credibility, the trial judge also had regard to L.W.s demeanour
    while testifying.

[34]

It
    is well-established that testimonial demeanour is a proper consideration in the
    evaluation of a witnesss credibility: see
e.g.
,
R. v. J.J.B.
,
    2013 ONCA 268, 305 O.A.C. 201, at para. 112.  In this case, the trial judge
    provided cogent reasons as to why he viewed the demeanour of each witness, at
    specific points in their testimony, as significant.  Moreover, demeanour was
    only one of many factors considered by him in his assessment of each
    complainants credibility and reliability.  (In the case of T.P., it was one of
    eight specific factors listed by the trial judge; in the case of A.S., it was one
    of 10 factors with respect to the sexual assault she alleged; and, in L.W.s,
    case it was one of 11 factors).

[35]

In
    these circumstances, in my opinion, it cannot fairly be said that the trial
    judge over-emphasized the complainants demeanour, or treated it as a
    controlling factor in his assessment of their credibility and reliability.

(c)

Alleged Reversal of Burden of Proof
    and
W.(D.)
Error

[36]

The
    appellant next argues that the trial judge erred by assessing the complainants
    credibility as if the appellants guilt had already been established, thereby
    reversing the burden of proof, undermining the reasonable doubt standard, and
    leaving no room for the defence evidence to raise a reasonable doubt.

[37]

In
    my view, the trial judges reasons do not support this claim.  The reasons
    indicate that the trial judge was alert throughout to the reasonable doubt
    standard and the principles articulated in
W.(D.)
regarding the
    presumption of innocence and the Crowns burden to prove its case beyond a
    reasonable doubt.  At several points in his reasons, the trial judge expressly
    cautioned himself on these important principles and noted that they applied to
    his assessment of the evidence as a whole.  He also explicitly recognized that
    a verdict of guilt cannot be based on a credibility contest, that is, on a
    choice between the defence evidence and that of the Crown, and that a more
    stringent level of scrutiny cannot be applied to the defence evidence than that
    applied to the Crowns evidence.

[38]

After
    identifying these governing principles, he summarized his approach to the
    evidence in this fashion, at p. 39:

[T]he presumption of innocence and the onus on the Crown to
    prove its case beyond a reasonable doubt must be applied, in letter and spirit,
    thereby giving practical recognition to their importance in a free and
    democratic society, like ours.  This is the approach that I have taken in
    arriving at judgment in this case.

[39]

The
    appellant argues that, having correctly identified the Crowns burden of proof
    and the
W.(D.)
principles, the trial judge erred by rejecting, as
    false, the appellants denials of the alleged assaults because of the strength
    of the Crowns case.  He points, for example, to the trial judges statement in
    his analysis of the evidence concerning the sexual assault of A.S., at p. 110, that:
    I reject [the appellants] denial as false and otherwise not sufficiently
    reliable to raise a reasonable doubt that he sexually assaulted [A.S.] because
    of the strength of the case for the Crown.

[40]

Based
    on this and similar statements by the trial judge, the appellant submits that
    the trial judge misconstrued this courts decision in
R. v. J.J.R.D. (
2006),
    215 C.C.C. (3d) 252, 218 O.A.C. 37, leave to appeal to S.C.C. dismissed, [2007]
    S.C.C.A. No. 69 and the Supreme Courts decision in
R. v.

R.E.M.
According to the appellant, those cases concern only the sufficiency of a trial
    judges reasons and do not stand for the proposition that an accuseds evidence
    can be rejected because a complainant is believed or because the Crown mounts a
    strong prosecution.

[41]

I
    would reject this submission as framed.

[42]

It
    is elementary that a complainants credibility cannot be established by
    assuming the accuseds guilt.  Nor can an accuseds evidence be rejected simply
    because the evidence of a complainant is accepted.
W.(D.)
precludes this
    either/or approach to the assessment of credibility.  Instead, under the
    third step of
W.(D.),
the trial judge must ask whether, although she
    may not believe the accuseds evidence, a reasonable doubt arises on the whole
    of the evidence that she does accept.

[43]

Contrary
    to the appellants submission, the trial judge in this case clearly appreciated
    and properly applied these critical principles.  Throughout his reasons, he
    frequently reminded himself of the Crowns burden, directed himself to the
    whole of the evidence to determine whether it gave rise to a reasonable doubt,
    and confirmed that he had taken account of the evidence as a whole, including
    the appellants testimony, when determining whether the Crown had established
    the alleged offences beyond a reasonable doubt.

[44]

For
    example, in connection with T.W.s allegation of sexual assault, the trial
    judge rejected the appellants testimony denying the assault on two grounds:
    (1) he found that the appellant was not sufficiently credible to raise a
    reasonable doubt, looking at the evidence as a whole; and (2) because of the
    strength of the Crowns case.  The trial judge reached a similar conclusion
    concerning the appellants denial of the August 2005 sexual assault of A.S. 
    With respect to this offence, in addition to his general consideration of the
    strength of the Crowns case, the trial judge identified 10 specific factors
    that led him to conclude that the appellants denial of the sexual assault of
    A.S. was false and otherwisenot sufficiently reliable to raise a reasonable
    doubt.

[45]

The
    trial judge did not err by factoring the strength of the Crowns case into his
    credibility and reliability analyses and by relying on it as one basis for
    rejecting the appellants denials of the alleged assaults.  This court has held
    that an accuseds evidence may be rejected based on a considered and reasoned
    acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence
    of the prosecutions witnesses.  In
R. v.

J.J.R.D.
, at para.
    53, Doherty J.A. said:

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.

See also
R. v. Windibank
, 2012 ONCA 237,
    [2012] O.J. No. 1604, at para. 6;
R. v. D.R.
, 2012 ONCA 253, at paras.
    4 and 5; and
R. v. D.T.
, at para. 71.

[46]

The
    recent decision of the Supreme Court in
Vuradin
is instructive on this
    point.  In
Vuradin
, as here, the appellant argued that the trial judge
    erred by first finding the complainant credible, and then using that finding to
    reject the conflicting evidence of the appellant, thereby effectively
    choosing the Crowns evidence over that of the defence:
Vuradin
at para.
    24.  The appellant acknowledges that this argument mirrors his own in this
    case.

[47]

In
    rejecting this argument in
Vuradin
, the Supreme Court concluded, at
    para. 25, that the trial judge in that case had merely articulated general
    principles of law that might be used in assessing the evidence of the accused. 
    The court elaborated, at paras. 27-28:

In the result, the trial judge rejected the appellants
    testimony.  In
Boucher
, Charron J. (dissenting in part) stated that
    when a trial judge rejects an accuseds testimony, it can generally be
    concluded that the testimony failed to raise a reasonable doubt in the judges
    mind (para. 59).  Similarly, in
R.E.M.
, McLachlin C.J. stated that
    the convictions themselves raise a reasonable inference that the accuseds
    denial of the charges failed to raise a reasonable doubt (para. 66).

Here, the appellant was not believed.  The Crowns case was
    considered with the appellants denial in mind, and the trial judge concluded,
    as he was entitled to do, that his denial did not raise a reasonable doubt.

See also the recent decision of this court in
R.
    v. J.W.
, 2014 ONCA 322.

[48]

In
    this case, the trial judge provided clear and detailed reasons for accepting
    the evidence of each complainant and rejecting the appellants denials of
    wrongdoing.  He specifically considered whether the evidence as a whole gave rise
    to a reasonable doubt and held that it did not.  Indeed, the necessity to
    consider whether the whole of the evidence gave rise to a reasonable doubt is a
    recurring theme in the trial judges reasons.

[49]

In
    my view, the trial judge did not err in his appreciation and application of the
    burden of proof and the
W.(D.)
principles.  To the contrary.  His reasons
    reveal that the Crowns burden and the
W.(D.)
requirements permeated
    his entire approach to the evaluation of the evidence.

(d)

Assessment of the Credibility and
    Reliability of Child Witnesses

[50]

The
    appellant submits that the trial judge further erred by failing to take proper
    account of the principles governing the assessment of the reliability of the
    evidence of child witnesses.  Again, I disagree.

[51]

As
    I have said, the trial judge was alert to the approach to the assessment of
    childrens evidence mandated by the Supreme Court of Canada in
R. v.

W.(R.)
. 
    At p. 42 of his reasons, he noted the Supreme Courts direction in
R. v.
    W.(R.)
, at p. 134, that when the evidence of an adult witness concerns
    events that occurred in childhood, the presence of inconsistencies,
    particularly as to peripheral matters such as time and location, should be
    considered in the context of the age of the witness at the time of the events
    to which she is testifying.  He also observed, at p. 42, that: [t]he
    credibility of any witness, including children, is to be considered in the
    context of the witness capability, mental or otherwise, in the circumstances
    of the case.  This accords with McLachlin J.s caution in
R. v.

W.(R.)
,
    at p. 144, quoted by the trial judge at p. 42:

Every person giving testimony in court, of whatever age, is an
    individual, whose credibility and evidence must be assessed by reference to
    criteria appropriate to her mental development, understanding and ability to
    communicate.

See also
R. v. B.(G.)
, [1990] 2 S.C.R. 30.  The
    trial judge expressly indicated that he approached the assessment of the
    complainants credibility in accordance with these principles.

[52]

It
    is true that the trial judge did not specifically mention the reliability of
    child witnesses when discussing the directions afforded by
R. v. W.(R.)
. 
    However, based on his reasons, it is clear that he understood that
    contradictions in a childs testimony should not be accorded the same effect as
    similar contradictions in an adults testimony.  Rather, the evidence of child
    witnesses must be approached with common sense.  The trial judge stated, at pp.
    39-40:

The evidence of children is not to be treated as evidence that
    is inherently unreliable or to be treated with special caution.  It may be
    incorrect to apply to them the same standards one would expect of an adult in
    similar circumstances.

[53]

These
    statements derive from
R. v. W.(R.)
.  In particular, at pp. 40-41, the
    trial judge quoted the following passages from
R. v. W.(R.)
, at pp.
    142-143:

The law affecting the evidence of children has undergone two
    major changes in recent years.  The first is removal of the notion, found at
    common law and codified in legislation, that the evidence of children was
    inherently unreliable and therefore to be treated with special caution.  The
    repeal of provisions creating a legal requirement that childrens evidence be
    corroborated does not prevent the judge or jury from treating a childs
    evidence with caution where such caution is merited in the circumstances of the
    case.  But it does revoke the assumption formerly applied to all evidence of
    children, often unjustly, that childrens evidence is always less reliable than
    the evidence of adults.  So if a court proceeds to discount a childs evidence
    automatically, without regard to the circumstances of the particular case, it
    will have fallen into error.



As Wilson J. emphasized in
B.(G.)
, these changes in
    the way the courts look at the evidence of children do not mean that the
    evidence of children should not be subject to the same standard of proof as the
    evidence of adult witnesses in criminal cases.  Protecting the liberty of the
    accused and guarding against the injustice of the conviction of an innocent
    person require a solid foundation for a verdict of guilt, whether the
    complainant be an adult or a child.  What the changes do mean is that we
    approach the evidence of children not from the perspective of rigid
    stereotypes, but on what Wilson J. called a common sense basis, taking into
    account the strengths and weaknesses which characterize the evidence offered in
    the particular case.

[54]

These
    excerpts from
R. v. W.(R.)
are concerned, in part, with the
    reliability of the evidence of child witnesses.  The trial judges reliance on
    these excerpts confirms his appreciation of the principles governing the
    assessment of the reliability, as well as the credibility, of child witnesses. 
    When evaluating the complainants testimony, the trial judge focused on both
    their credibility and reliability.  That he critically assessed the reliability
    of the complainants evidence is manifest, for example, in his finding that
    while the appellant physically assaulted A.S. in June 2006, the assault did not
    involve the use of a weapon (a baseball bat), as A.S. had alleged.

[55]

In
    short, I see no merit to this ground of appeal.

(2)

Other Grounds of Appeal

[56]

The
    appellant raises several other grounds of appeal, many of which, at heart, also
    concern the trial judges approach to the evidence.  I will address these
    grounds in turn.

(a)
Treatment of Evidence Concerning Sexual Assault of L.W.

[57]

Apart
    from his more generalized attack on the trial judges approach to the evidence,
    discussed above, the appellant argues that the trial judge erred in three specific
    respects in his treatment of the evidence regarding L.W.s sexual assault
    allegation.  He complains that the trial judge erred: (1) by interpreting the
    appellant's remarks during a conversation with L.W. as an admission of guilt;
    (2) by relying on inadmissible hearsay evidence to anchor his conclusion that
    the appellant sexually assaulted L.W.; and (3) by using his disbelief of the
    appellants denial of a conversation with A.S.s mother (T.S.), about the
    sexual assault of L.W. as a basis for convicting the appellant of this
    offence.

(i)

Finding of an Admission of Guilt

[58]

L.W.
    testified at trial that, years after her own experiences of abuse and after her
    sister A.S. alleged abuse by the appellant, she had a conversation with the
    appellant during which she confronted him regarding what he had done to her
    (L.W.).  She claimed that he responded to this confrontation by saying that he
    didnt remember doing that, he [knew] that [she was] not lying, if [she]
    said he did it, then he did it, but he just doesnt remember doing that and
    hes really sorry if he did, and [she had] no reason to lie.  L.W. elaborated
    that the appellant apologized to her, but [made] it clear that he did not
    remember (the Confrontation).

[59]

At
    trial, the appellant denied that the Confrontation had ever occurred.

[60]

The
    trial judge accepted L.W.s account of the Confrontation and rejected, as false,
    the appellants denial of it.  He also concluded that the nature of the appellants
    responses to L.W. during the Confrontation constituted an admission by him of his
    sexual assault of her.

[61]

Before
    this court, the appellant does not challenge the trial judges finding that the
    Confrontation occurred, or the nature of the remarks said to have been made by him
    during the Confrontation.  Rather, he submits that the trial judges
    interpretation of his remarks during the Confrontation is unreasonable.

[62]

The
    appellant points, especially, to the conditional nature of the statements
    attributed to him, and to L.W.s evidence that he told her that he had no
    memory of his alleged sexual assault of her.  The appellant says that, even on
    L.W.s version of the Confrontation, he clearly did not accept responsibility
    for or confess to a sexual assault.  The trial judges finding to the contrary,
    therefore, was unreasonable.

[63]

I
    would not accede to this argument.  The trial judge accepted, and the appellant
    does not contest, the content of his statements during the Confrontation.  On
    their face, some of the words uttered by the appellant can be interpreted as an
    acknowledgement by him of the sexual assault alleged by L.W.  if [she] said
    he did it, then he did it, [L.W.] had no reason to lie and he knew that L.W.
    was not lying.  On the evidence accepted by the trial judge, the appellant did
    not respond to the Confrontation by denying that he had committed the offence
    against L.W., nor did he question the veracity of her accusation.  Rather, he
    acknowledged that L.W. was not lying and accepted that if she said a sexual
    assault had occurred, it did occur.  He then apologized to L.W.

[64]

In
    my view, it was open to the trial judge to conclude, based on the evidence he
    accepted regarding the circumstances of the Confrontation and the nature of the
    statements made by the appellant during the Confrontation, that the appellants
    words constituted an admission by him of the sexual assault that L.W. alleged.

(ii)
Alleged Improper Reliance on Hearsay Evidence

[65]

A.S.
    testified that in early 2004, when L.W. was about to give birth to her
    daughter, she spoke to L.W. about whether L.W. would permit the appellant to
    visit her child.  According to A.S., L.W. replied, that would never happen
    because she didnt want things to happen to her daughter that happened to
    her.

[66]

L.W.
    testified after A.S.  She indicated that the appellant had never seen his
    granddaughter and she did not remember his ever asking to see her.  L.W. was
    not asked, and did not say, that she prevented the appellant from seeing her
    daughter because of the appellants prior sexual abuse of her.

[67]

The
    appellant testified that he made arrangements in 2004 to see L.W.s daughter. 
    He claimed that when he attended at the appointed time to meet L.W. and his
    granddaughter, L.W. wasnt there, and that this was not the only time that
    this happened.

[68]

The
    appellant submits that the trial judge erred by using A.S.s account of her
    alleged discussion with L.W. as confirmatory evidence that the appellant
    sexually assaulted L.W.  He maintains that A.S.s evidence of L.W.s alleged
    statement to her was inadmissible hearsay that could not be used as positive
    evidence of the appellants guilt.  Further, since L.W. testified and did not
    confirm A.S.s version of the discussion, A.S.s evidence on this issue was
    also unreliable.

[69]

I
    would not accept these submissions.

[70]

First,
    I do not agree that A.S.s account of L.W.s alleged statement to her was
    inadmissible hearsay evidence.  In my view, this evidence was admissible under
    the state of mind exception to the rule against hearsay.

[71]

The
    trial judge regarded A.S.s evidence of L.W.s alleged statement to her as some
    circumstantial evidence of L.W.s state of mind, at the time of her daughters
    birth, concerning the alleged sexual assault.  The state of mind or present
    intention exception to the rule against hearsay permits the admission into
    evidence of statements of intent or of other mental states for the truth of
    their contents:
R. v. Starr
, 2000 SCC 40, at para. 169.  To be
    admissible under the exception, the state of mind must be relevant, and the
    statement must be made in a natural manner and not under circumstances of
    suspicion:
Starr
at para. 168;
R. v. T.J.
, 2014 ONCA 321, at
    para. 33.  Although the Supreme Court has clarified aspects of the rule against
    hearsay in post-
Starr
cases, the traditional exceptions to the rule
    remain presumptively intact: see
R. v. Baldree
, 2013 SCC 35, [2013] 2
    S.C.R. 520, at para. 34.

[72]

In
    this case, there was no evidence that L.W.s alleged statement to A.S. was not
    made in a natural manner, or that it was made in circumstances of suspicion. 
    The evidence of the alleged statement was relevant since it was probative of
    L.W.s state of mind when her daughter was born concerning the appellants past
    assaultive conduct.  As a result, in my view, the prerequisites for invocation
    of the state of mind exception to the rule against hearsay were satisfied and
    the evidence was admissible under this exception.

[73]

In
    any event, and more importantly, the trial judge regarded L.W.s failure to
    arrange for her daughter to meet the appellant  the childs grandfather  as
    circumstantial evidence of L.W.s state of mind regarding the sexual assault
    that was consistent with the fact of the assault.  I agree.  Apart from L.W.s
    alleged statement to A.S., the evidence of L.W.s conduct denying the appellant
    access to his granddaughter  conduct that the appellant himself confirmed 
    was consistent with L.W.s claim that she had been sexually assaulted by the
    appellant and with the fact of that assault.

[74]

It
    was this factor, and not L.W.s alleged statement to A.S., that the trial judge
    focused on in his recitation of the many considerations that led him to
    conclude that the appellant had sexually assaulted L.W.  He summarized these
    considerations as follows, at pp. 55-56 of his reasons:

Thus, looking at the evidence as a whole, including the
    testimony of the [appellant], I am satisfied beyond a reasonable doubt that the
    [appellant] touched [L.W.s] vagina on her thirteenth (13th) birthday in
    December 1998.  [L.W.] was a straightforward, careful and credible witness.
She
    has, consistent with the alleged sexual assault, not permitted her father to be
    near her daughter
.  [L.W.] does not have a motive to fabricate the alleged
    sexual assault.  She did not collude with [A.S.] and [T.P.], deliberately or
    intentionally, and her conversations with them have not significantly affected
    her evidence about the alleged sexual assault.  She did not actively seek to
    complain to the police, but cooperated with them because she believed her
    fathers conduct was wrong and wanted to help him.  The conversations with her
    father about his own molestation as a child are striking, in that they were
    unlikely fabricated by [L.W.] and were falsely denied by the [appellant], and
    included an admission that he sexually assaulted her.  The [appellant] also
    falsely denied the conversation with [A.S.s mother] relating to the rumours
    that he sexually abused [L.W.] because, in my view, of the substance of the
    rumours.  The prior inconsistent statements of [L.W.] and her inability to
    recall certain aspects of the alleged sexual assault are not important to me. 
    The history of [L.W.s] complaints does not detract from her credibility.  The
    [appellant] is not sufficiently credible to raise a reasonable doubt that he
    sexually assaulted [L.W.], looking at the evidence as a whole.  [Emphasis added.]

[75]

Several
    of these factors are particularly powerful.  Most notable, on the trial judges
    findings, was the fact of the appellants admission during the Confrontation of
    his sexual assault of L.W., discussed above.  Also telling was the evidence of
    T.S. (A.S.s mother), that she confronted the appellant concerning rumours of
    him sexually touching L.W.  The appellant denied the fact of this conversation
    with T.S., a denial that the trial judge concluded was false and a transparent
    effort by the appellant to distance himself from the assault of L.W.

[76]

When
    the trial judges reasons are read as a whole, it is apparent that it was not
    A.S.s account of her discussion with L.W. that the trial judge regarded as
    significant in assessing the appellants culpability for the sexual assault of
    L.W.  Rather, it was the fact that the appellant never met L.W.s daughter 
    his own granddaughter  as the appellant himself confirmed in his testimony 
    together with the numerous other considerations identified by the trial judge
    that grounded the appellants conviction for this offence.  In my opinion,
    viewed in their entirety, these considerations overwhelmingly supported the appellants
    conviction for the sexual assault of L.W.

(iii)
Alleged
    Improper Reliance on Disbelief of Appellant

[77]

The
    appellant also contends that the trial judge erred by using his disbelief of
    the appellants denial of a conversation with T.S. (A.S.s mother) concerning
    the sexual assault of L.W. as circumstantial evidence of his guilt, contrary to
    the principles enunciated by this court in
R. v. Coutts
(1998), 126
    C.C.C. (3d) 545, leave to appeal to S.C.C. dismissed, [1998] S.C.C.A. No. 450. 
    Once again, in my view, the trial judges reasons belie this contention.

[78]

It
    is well-established that, absent independent evidence of concoction, a trier of
    fact may not infer concoction from the disbelief of an accuseds testimony and
    use that finding of concoction as evidence of guilt:
Coutts
at para.
    15.  As the
Coutts
court warned, this type of reasoning ignores the
    Crowns obligation to prove an accuseds guilt beyond a reasonable doubt.

[79]

In
    this case, as I have already mentioned, T.S. testified that she spoke to the
    appellant about rumours that he had sexually touched L.W.  According to T.S.,
    the appellant brushed off the allegations and said that L.W.s mother was
    making things up.  At trial, the appellant denied that this conversation with
    T.S. had ever occurred.

[80]

On
    appeal, the appellant maintains that the trial judge misused this evidence by
    finding not only that the disputed conversation between T.S. and the appellant
    occurred, but also that the appellant falsely denied that the conversation had
    taken place in a transparent attempt to distance himself from [L.W.] and because
    the subject matter of the conversation with [T.S.] was the alleged sexual abuse
    of [L.W.], even though he denied the rumours during their conversation (at pp.
    50 and 54).

[81]

I
    disagree.  In my view, the trial judges reasons reveal no impermissible use of
    T.S.s testimony regarding her discussion with the appellant.  It was obviously
    open to the trial judge to accept T.S.s evidence that this discussion took
    place and to reject the appellants denial of it.  It was in the specific
    context of assessing the appellants credibility that the trial judge
    considered, and accepted, T.S.s evidence of the fact of her conversation with
    the appellant concerning his rumoured abuse of L.W.  This is made clear by the
    trial judges opening comments on this issue, when he stated at pp. 53-54:

Eleventh, the [appellant] testified that he did not sexually
    assault [L.W.] on her thirteenth (13th) birthday and, further, that he was not
    in Windsor in December 1998 because of his busy work schedule.

Respectfully, I reject his evidence as false and, in my view,
    he is not sufficiently credible to raise a reasonable doubt that he sexually
    assaulted [L.W.], looking at the evidence as a whole.

[82]

These
    introductory comments, and the trial judges ensuing discussion of the frailty
    of the evidence supporting the appellants claim of a work-related alibi on the
    day of L.W.s 13th birthday, confirm that the trial judge used T.S.s evidence
    of her discussion with the appellant, not as circumstantial evidence of the
    appellants guilt, but, rather, as evidence relevant to his assessment of the
    appellants credibility.

[83]

It
    was in this context that the trial judge found that the appellant had lied
    about whether the discussion with T.S. took place.  He accepted that the
    discussion occurred and disbelieved the appellants denial of it.  He did not
    proceed from this disbelief to a guilty verdict.  Having assessed the
    appellants credibility, he accepted L.W.s evidence, based on numerous
    factors, quoted above.  I see no reversible error in the trial judges
    treatment of this evidence.

(b)
Alleged Collusion

[84]

The
    appellant next argues that the trial judge erred by concluding that collusion
    did not affect the reliability of the complainants testimony.  He submits that
    the trial judge failed to properly consider the possibility that the
    complainants evidence at trial, consciously or unconsciously, was coloured by
    their admitted pre-trial conversations regarding their assault allegations and
    that the potential for collusion among the complainants could raise a
    reasonable doubt.

[85]

As
    I have said, at the outset of trial, the Crown brought an application seeking
    to have the complainants testimony admitted as similar act evidence.  The
    trial judge dismissed the application after the complainants had testified on
    the basis that the Crown, at the time of the application, had failed to
    establish that the complainants did not collude with one another concerning their
    allegations.  In contrast, in his reasons for judgment, the trial judge
    concluded that the possibility of collusion by the complainants was not a
    significant factor in his assessment of their credibility and reliability.

[86]

The
    appellant submits that the trial judges finding concerning collusion in his similar
    act ruling is tantamount to a holding that collusion in fact occurred among the
    complainants, and that this holding is inconsistent with his findings regarding
    collusion in his reasons for judgment.  The appellant points, especially, to
    the trial judges statement in his similar act ruling that: I am not satisfied
    on a balance of probabilities that the Crown has proven [that the complainants]
    did not collude with one another.  The appellant says that this statement
    logically amounts to an affirmative finding of collusion.

[87]

The
    appellant further submits that there was evidence at trial that unconscious
    collusion might be in play in respect of the testimony of each of the three
    complainants.  He argues, for example, that the trial judge erred by rejecting
    the possibility of unconscious collusion by the complainant L.W. on the basis
    that he had already concluded that the appellant was guilty of the crimes
    alleged.

[88]

I
    would reject these submissions for several reasons.

[89]

First,
    the trial judge found that no conscious or deliberate collusion occurred.  I
    did not understand the appellant to challenge this finding.

[90]

Second,
    contrary to the appellants contention, I see no inconsistency between the
    trial judges analysis with respect to collusion in his reasons for judgment
    and his consideration of collusion in his similar act ruling.

[91]

The
    trial judges similar act ruling focuses on whether the Crown, at the time of
    the similar act application, had demonstrated that the proffered evidence of
    similar acts was not tainted by collusion.  In holding that the Crown had
    failed to establish, on a balance of probabilities and at that stage of the
    trial, that unconscious collusion did not take place, the trial judge did not
    go on to find that collusion, in fact, had occurred.  His ruling simply reflects
    his finding that, at the time of the similar act application, the Crown had
    failed to demonstrate that no possibility of collusion existed.

[92]

Moreover,
    outside of the similar act context, the Supreme Court has held that evidence of
    collusion is relevant insofar as it goes to the reliability of the evidence in
    question:
R. v. Burke
, [1996] 1 SCR 474.  In
Burke
, Sopinka
    J. wrote, at para. 45, that a trier of fact must determine:

[W]hat weight, if any, is to be given to evidence that is
    alleged to

have

been

concocted

by means of collusion or collaboration. 
    Under this approach, the trier of fact is obliged to consider the reliability
    of the evidence having regard

to

all

the

circumstances,

including

the opportunities for collusion or collaboration to concoct the
    evidence and the possibility that these opportunities were used for such a
    purpose.  [Emphasis in original.]

See also
R. v. F.(J.)
(2003), 177 C.C.C. (3d)
    1 (Ont. C.A.).

[93]

The
    trial judge in this case did not ignore the defence claim of collusion.  He was
    obliged to consider any evidence bearing on the reliability of the
    complainants evidence, including the possibility of collusion.  Having heard
    all the evidence, he addressed this claim head on.  Ultimately, he accepted the
    Crowns argument that the circumstances surrounding the sexual assaults
    described by the complainants were materially different, thus rendering the
    possibility of collusion remote.

[94]

This
    finding is supported by the evidentiary record.  As the trial judge noted, unconscious
    colouring of each complainants testimony was unlikely where, as here, specific,
    discrete assaultive acts were alleged.  Having considered the possibility of
    conscious or unconscious collusion by the complainants, the trial judge was
    entitled to reject that possibility as remote.

(c)
Trial Judges Self-Direction Concerning
Vetrovec v. The Queen

[95]

The
    appellant advances a specific challenge to the trial judges approach to the
    assessment of A.S.s evidence.  He submits that, having instructed himself to
    decline to accept A.S.s testimony as proof beyond a reasonable doubt of any of
    the alleged offences, absent confirmatory evidence, the trial judge then ignored
    this self-direction when convicting the appellant of sexual assault and sexual
    exploitation in relation to A.S.

[96]

I
    would not accede to this argument.  First, and importantly, this was not a case
    where A.S. was of unsavoury character such that a 
Vetrovec
-like
    warning was required as a matter of law.  That said, given the apparent weaknesses
    in aspects of her testimony, which the trial judge recognized, prudence
    mandated careful evaluation of her credibility and reliability.

[97]

Second,
    as I attempted to emphasize earlier in these reasons, the trial judge in fact
    followed the cautionary course to the assessment of A.S.s evidence that he had
    voluntarily charted.  At the outset of his consideration of her testimony, he
    noted the evidence of A.S.s past emotional and mental health-related problems
    and, in light of that evidence, indicated that he had determined to be
    exceptionally cautious in [his] assessment of her credibility and the
    reliability of her evidence.  I have earlier alluded to his refusal, in the absence
    of confirmatory evidence, to accept A.S.s testimony as proof beyond a
    reasonable doubt of the offences she alleged.

[98]

That
    the trial judge did employ this cautionary approach is apparent from his
    analysis of the evidence concerning A.S.s physical assault allegations.  The
    trial judge undertook a detailed review of the evidence pertaining to each of
    the physical assaults alleged by A.S., including of the appellants evidence concerning
    the relevant incidents.  His reasons reveal that, in the absence of evidence
    confirmatory of the reliability of the material aspects of A.S.s testimony, he
    rejected her version of events regarding these assaults.  For example, for
    reasons he explained, the trial judge accepted A.S.s evidence that the
    appellant physically assaulted her in June 2006.  However, he expressly held
    that in the absence of confirmatory evidence, he was not satisfied beyond a
    reasonable doubt that this assault involved the use of a weapon  a baseball
    bat  as A.S. had alleged.  He also rejected aspects of A.S.s testimony about other
    alleged physical assaults by the appellant, where proof of the assaults rested
    exclusively on A.S.s evidence.

[99]

Third,
    the trial judge turned to A.S.s allegation of sexual assault only after
    conducting an extensive and separate review of each of her physical assault
    allegations.  By that point in his analysis, the trial judge had already
    accepted, based on independent confirmatory evidence, many of the details of
    A.S.s testimony.

[100]

The trial judge
    went on to find that parts of the evidence of T.S. (A.S.s mother) were both
    confirmatory of elements of A.S.s testimony and truthful reliable evidence. 
    This included T.S.s evidence of A.S.s disclosure to her, in July 2008, of the
    appellants sexual abuse of her and the circumstances surrounding A.S.s
    subsequent decision to disclose this abuse to the police.  The trial judge also
    found, contrary to D.R.s evidence, that A.S. complained to D.R. of the
    appellants sexual abuse shortly after it occurred.

[101]

In total, the
    trial judge identified 10 separate considerations that drove him to accept
    A.S.s testimony regarding the sexual assault.  In so doing, he provided clear
    reasons for his rejection of the appellants denial of the sexual assault and
    for his conclusion that A.S.s testimony concerning this assault was both
    credible and reliable.

[102]

Finally, I agree
    with the Crowns submission that the trial judge was entitled to accept A.S.s
    evidence about the sexual assault, even in connection with aspects of that
    assault that were not otherwise independently confirmed, if he was satisfied on
    the totality of the evidence that A.S. was telling the truth.  For reasons he
    explained, he was so satisfied.

[103]

In all these
    circumstances, I see no basis for appellate intervention with the trial judges
    conclusion on this issue.

(d)
Finding of Lack of Motive to Fabricate

[104]

The appellants
    last ground of appeal concerns his submission that the trial judge erred by
    finding that the Crown had established the complainants lack of a motive to fabricate. 
    In my view, this submission must also fail.

[105]

It was the
    theory of the defence at trial that the complainants had fabricated their
    allegations against the appellant.  In her closing submissions, defence counsel
    at trial argued that each of the complainants had a motive to fabricate 
e.g.
that L.W. and A.S. did not have good relationships with their father and both
    had asked him for various types of financial and other assistance, which he
    refused.

[106]

In his reasons,
    the trial judge considered and responded to the defence position on this issue. 
    With respect to L.W., he commented, at p. 45, in my view, this is a case where
    the Crown has proven an absence of a motive of [L.W.] to fabricate the alleged
    sexual assault.  He made similar findings concerning T.P.s lack of a motive
    to fabricate her allegations against the appellant (at p. 58) and A.S.s lack
    of a motive to fabricate her description of her disclosure to D.R. of the
    appellants sexual assault of her (at pp. 86-87).  In other instances, however,
    as with some of A.S.s allegations of physical abuse by the appellant, the
    trial judge concluded that the Crown had not proven an absence of a motive by
    A.S. to fabricate (at p. 85).

[107]

I accept that
    the absence of evidence of a demonstrated motive to fabricate must be
    distinguished from affirmative proof of no motive to fabricate.  As this court
    noted in
R. v. L.(L.)
, 2009 ONCA 413, 244 C.C.C. (3d) 149, at para.
    44, citing
R. v. B.(R.W.)
(1993), 24 B.C.A.C. 1 (C.A.), at para. 28: it
    does not logically follow that because there is no apparent reason for a
    witness to lie, the witness must be telling the truth.

[108]

In this case, in
    my opinion, there is no basis to conclude that the trial judge confused the
    absence of evidence of a motive to fabricate with the absence of such a
    motive.  In his reasons, the trial judge expressly addressed the evidence
    relied on by the defence in support of the claim that each of the complainants
    had a motive to fabricate their allegations, rejected the suggestion of
    fabrication, and provided reasons for so doing.  At no point did he suggest that
    because no motive to fabricate had been demonstrated, the complainants must be
    telling the truth.  Rather, the absence of an established motive to fabricate
    was merely one factor that he considered when assessing each complainants
    credibility.  The trial judge did not err by proceeding in this fashion.  In
R.
    v. Batte
, (2000) 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121, this
    court confirmed that: [t]he presence or absence of a motive to fabricate
    evidence is only one factor to be considered in assessing credibility.

[109]

It was open to
    the trial judge to find an absence of apparent motive by the complainants to
    fabricate.  His reasons provide no support for the conclusion that he regarded
    this finding as conclusive of whether the complainants were telling the truth. 
    To the contrary.  His reasons make it abundantly clear that he considered
    numerous factors, including the defence evidence, in assessing the
    complainants credibility.

[110]

I would,
    therefore, reject this ground of appeal.

F.

DISPOSITION

[111]

This trial
    involved multiple complainants and numerous allegations of historical sexual
    and physical abuse.  The trial judges reasons are comprehensive and
    considered.  In arriving at his factual findings and verdicts, he took account
    of the whole of the evidence, including the appellants denials of the assaultive
    incidents involving his daughters, the parties positions and the issues raised
    by them, and the Crowns burden of proof.  In my view, his credibility and
    reliability findings attract deference from this court, as does his overall
    evaluation of the evidence.

[112]

Accordingly, for
    the reasons given, I would dismiss the appeal.

Released:

JUL 4 2014                                                E.A.
    Cronk J.A.

EAC                                                          I
    agree G.J. Epstein J.A.

I
    agree M.L. Benotto J.A.


