



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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. Burnie, 2013 ONCA 112

DATE: 20130222

DOCKET: C53111

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Burnie

Appellant

William V. Reid, for the appellant

Gillian E. Roberts, for the respondent

Heard: September 18, 2012

On appeal from the convictions entered on October 25,
    2010 by Justice J. Christopher Corkery of the Superior Court of Justice,
    sitting without a jury.

Tulloch J.A.:

(1)

OVERVIEW

[1]

The
    appellant was charged with two counts of sexual assault, two counts of touching
    for a sexual purpose a person under the age of fourteen and one count of simple
    assault.

[2]

The
    appellant was a substitute teacher and the two female complainants were grade
    six and seven students. The two incidents giving rise to the charges occurred in
    the same school on two different days one week apart. The evidence led at trial
    consisted mainly of that given by two complainants and two witnesses. Each
    witness was a female classmate of one of the complainants and gave evidence
    concerning each incident. At the unopposed request of the Crown, the trial
    judge admitted video statements given by the complainants and witnesses to the
    police. These statements were played in court and adopted by the complainants
    and witnesses in their examinations in-chief pursuant to s. 715.1 of the
Criminal
    Code
. The complainants and witnesses were cross-examined on their
    interaction with each other prior to the revelation of these incidents to a
    teacher, the school principal and ultimately the police. During the trial, the
    school principal and one teacher also testified briefly.

[3]

The
    evidence was heard over three days and the trial was adjourned for submissions.
    Those submissions did not form part of the record before this court. At the
    commencement of the trial, the Crown applied for the admission of each incident
    as similar fact evidence in support of the other. The appellant opposed this
    application. While the trial judge did not rule on the admissibility of the
    similar fact application during the course of the trial, he did admit the
    similar fact evidence and indicated this during his reasons for judgment.

[4]

At
    the end of the trial, the trial judge reserved his judgment and delivered his
    reasons orally. Included in these reasons was his ruling granting the similar
    fact evidence application, as well as convicting the appellant of the sexual
    assault and sexual touching counts for each complainant. The Crown did not
    pursue the simple assault charge. Accordingly, it was dismissed.

[5]

The
    matter was adjourned for sentence and the trial judge ultimately sentenced the appellant
    to 90 days in jail, to be served intermittently and to be followed by a period
    of probation. The judge also ordered that he provide a sample of his DNA,
    register as a federal sex offender, and abstain from the possession of weapons..

[6]

The
    appellant appeals his conviction and sentence on the basis that the trial
    judges reasons for conviction were not sufficient to permit meaningful
    appellate review.

[7]

I
    find the trial judges reasons fall short with respect to his treatment of the
    evidence in this case, in particular, that the complainants and the witnesses
    had the opportunity to collude in his treatment of the conflicting evidence
    elicited by the defence. For the reasons that follow, I would allow the appeal,
    set aside the appellants convictions and order a new trial.

(2)

FACTS

[8]

In
    light of the disposition I would order, I review the facts only insofar as is
    necessary to understand the nature of the evidence and the issues for this
    court to decide. I stress that nothing I say, particularly with regard to any
    apparent inconsistencies in the evidence, should be taken as an assessment of
    the credibility or strength of the evidence. Those would be issues for the new
    trial judge to determine guided by the appropriate legal principles.

(a)

May 13th, 2008 Incident:

(i)

Evidence
    of E.M.

[9]

On
    May 13th, 2008, the appellant was working as a substitute teacher in a grade 7
    class. E.M. and A.S. were students in that class. E.M.s evidence was that she
    was eating lunch with a group of students in the classroom when the appellant
    approached her group to ask some of the boys to settle down. E.M.s friend A.S.
    called to her from across the room. She rose to go see her.  She testified that
    while she was standing, however, the appellant grabbed her butt on the right
    cheek of her buttocks with his left hand for like five seconds. It ended when
    she walked away. She testified that nobody from the group she was sitting with
    appeared to have seen this. Afterward, she approached her friend A.S. and asked
    her to attend the washroom with her. While in the washroom, E.M. disclosed to
    A.S. what had just happened to her. E.M. agreed in cross-examination that A.S.
    made it clear to her that she had not seen what had happened. According to
    E.M., upon the girls return to the classroom, the appellant removed sunglasses
    from A.S.s face and made a comment to her. Later that day, E.M. told another
    friend about the appellant grabbing her buttock. However, E.M. did not tell anyone
    else, including teachers, the principal or her parents about what had happened
    that day.

(ii)

Evidence
    of A.S.

[10]

A.S. indicated
    in her video statement to the police and testified under cross-examination that
    she saw what happened to E.M.. However, there were discrepancies between her
    story and E.M.s. A.S.s evidence was that the touching of E.M.  occurred earlier
    in the day, that it was while E.M. was seated and that the appellant had his
    foot up near where E.M. was seated. In addition, A.S. testified that
    immediately after the touching, E.M. called out to her by name in a relatively
    quiet room and told her what had happened.  Her evidence was that the two girls
    then went to the washroom where she told E.M. that she had seen the appellant
    touch her. A.S. also indicated that the incident involving the appellant
    removing her sunglasses and making a comment to her happened before the
    incident involving E.M.. A.S. claimed quite adamantly that she saw the appellant
    grab the buttock of E.M. and she demonstrated the touch in her video statement
    to the police. A.S. also indicated in her video statement to the police that
    they reported what happened to an educational assistant later the same day.

(b)

May 20th, 2008 Incident

[11]

A week later, on
    May 20th, 2008, the appellant was working as a substitute teacher in a grade 6
    class in the same school. A student in that class alleged that the appellant
    touched her sexually as well.

(i)

Evidence
    of B.N.

[12]

B.N. and A.B.
    were students in the grade six class taught by the appellant on May 20, 2008.
    B.N. indicated that prior to the end of the class she approached the appellant
    in the classroom near the front blackboard and tapped him on the shoulder. He
    turned and put his arm on her shoulder to ask what she wanted, and he slid his
    hand down her back. She told him that she needed to leave a few minutes early
    to help out in another class and she indicated that his hand slipped down to
    my bumand he wouldnt let gountil a couple of guys needed him at the backand
    he took his hand off and went to the back table.  B.N.s evidence was that,
    following the touch, she went back to her work. However, later that day she
    told her friend A.B. that the appellant had touched her and they decided to
    tell their regular teacher when she returned the next day.

(ii)

Evidence
    of A.B.

[13]

In her
    videotaped statement to police and in court, A.B. indicated that she saw the
    appellant put his hand down B.N.s back but did not see him touch her buttocks.
    However, she indicated that immediately after this, B.N. came to the back of
    the room and told her that the appellant had smacked her buttocks and later,
    that he had touched her buttocks. A.B. also testified in cross-examination
    about how at a recess later that day she and B.N., and E.M. and A.S., among
    others, had discussed the incidents from the previous week:

[W]e all got together and discussed it, and thats when we
    decided that we were going to do something about it.



[E.M.], [A.S.], and [B.N.], and me. And I cant remember.



We all discussed what happened to each other and we made a game
    plan and we went and told.

[14]

B.N. and A.B.
    first went to their teacher the next day to report their incident. The
    principal was absent that day. The following day, however, he called all the
    girls down to his office and upon hearing some of what they had to say asked
    them to write down brief statements about what had happened. Subsequent to this,
    the girls individually gave their video statements to the police. The very
    brief handwritten statements were entered as exhibits in the trial, as well as
    a one page typed statement/report prepared and signed by the principal.  The
    video statements given by E.M., A.S., B.N. and A.B. and transcripts of the
    statements were also entered as exhibits in the trial.

(3)

DECISION BELOW

[15]

The trial
    judges decision was delivered orally. He thoroughly summarized the evidence of
    the two complainants, which comprised the majority of the judgment.

[16]

While the trial
    judge described the two complainants evidence at length, he dismissed the
    evidence of the two purported eyewitnesses to the two incidents in relatively
    short order. With respect to the witness A.S., the trial judge acknowledged
    that her version of what transpired differs from [E.M.]s version. He noted
    that:

In her video-taped statement and also in cross-examination,
    [A.S.] tries to answer all the questions put to her; however, her answers
    sometimes do not match the questions.

She mixes her opinions and thoughts about what others are
    experiencing with her own observations. She reflects on what happened in a
    train of thought that is not always chronological. She makes frequent use of
    the word "like" and in doing so, it is unclear from the context
    whether she is using the word to accurately relate, to speculate, to guess, or
    to just provide her best recollection of what she saw and heard. She does not
    always complete her sentences or thoughts. I have no doubt that [A.S.] tried
    her best to provide full and honest answers to the questions put to her;
    however, I found the evidence in her statement and in her cross-examination to be
    of limited probative value.

[17]

With respect to
    the other witness, A.B., the trial judge observed:

In her statement and in her cross-examination, [A.B.] confuses
    times and dates. She cannot remember details. At times she provides one version
    of events and then hesitates and corrects herself or says that she cannot
    remember. She makes references to having flashbacks. I am unable to rely upon
    any of the evidence of [A.B.].

[18]

In his ruling on
    the similar fact evidence, the trial judge referenced
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, summarizing many of the salient principles from
    that leading case. After noting that potential prejudice inherent in the admission
    of similar fact evidence is reduced significantly in a judge alone trial, he
    addressed one of the appellants main concerns at trial:

It is pointed out by the defence that in the circumstances of
    this case there is a significant possibility for collusion. The girls talked
    with each other. They discussed what had happened.

[19]

Without further
    analysis, the trial judge then immediately ruled:

Nevertheless, I am satisfied on the facts of this case that the
    probative value outweighs the prejudicial effect, and that I may consider the
    similar fact evidence of the two counts involving the allegations against
    [B.N.] and [E.M.] as evidence that the acts occurred.

[20]

Then, after
    briefly summarizing the positions of the Crown and defence, his holding was
    entirely set out in the single final paragraph:

Having carefully reviewed the evidence of [E.M.] and [B.N.], in
    particular; and having considered their statements to the police, their
    evidence in court, their cross-examination, and the statements prepared for the
    principal, I am satisfied beyond a reasonable doubt that their version must be
    accepted. I am satisfied beyond a reasonable doubt that Mr. Burnie touched the
    buttocks of [E.M.] and [B.N.]. I am also satisfied beyond a reasonable doubt
    that the touching of their buttocks was for a sexual purpose. Accordingly, I
    find Mr. Burnie guilty on all counts.

[21]

Other than the
    trial judges summary of the evidence of the two complainants, his brief
    dismissal of the evidence of the other witnesses and his ruling on the similar
    fact evidence, this paragraph was the only analysis apparent from his judgment
    on which he based his finding of guilt.

(4)

ISSUES

[22]

The appellant
    raises the following issues on appeal:

1. Did the trial judge subject the
    Crowns case to the scrutiny required to justify a criminal conviction?

2. Did the trial judge give proper
    reasons for accepting the evidence of E.M. and B.N.?

3. Did the trial judge properly assess
    the evidence in accordance with the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742?

4. Should the B.N. and E.M. incidents
    have been admitted against each other as similar acts?

5. Did the trial judge err in
    convicting the appellant on both counts involving E.M. and both counts
    involving B.N.?

6. Did the trial judge err in
    sentencing the appellant?

[23]

The appellant
    subsequently abandoned his sentence appeal. In the analysis below, I will focus
    on the second, third and fourth issues. In my view, the resolution of these
    issues is dispositive of the appeal. In respect of the fifth issue, the
    respondent concedes that the appellant should have been convicted of only one
    count for each incident of sexual touching pursuant to the principle in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. I agree with the respondents
    concession. However, in light of the disposition I would order, it is not
    necessary for me to address the matter further
.

[24]

The respondent
    argues that the trial judges findings of credibility and reliability are
    factual determinations, which are exclusively within the trier of facts domain.
    As such, these findings attract significant deference from a reviewing court.
    Furthermore, the reasons for judgment are adequate in the circumstances, as the
    trial judge was not required to address every inconsistency and resolve every
    factual detail. Finally, the respondent submits that there was ample basis upon
    which to support the trial judges conclusion.

[25]

The respondent submits
    that this was a relatively simple case. The case stood to be determined on
    whether the Crown witnesses were sufficiently credible and reliable to
    establish the allegations of sexual touching beyond a reasonable doubt. There
    was an ample basis upon which to support the trial judges conclusion.

[26]

The respondent
    further submits that the trial judge did not err in his application of
R.
    v. W.(D.)
, [1991] S.C.R. 741

as the appellant did not testify or call
    a positive defence. Thus, the case stood to be determined at the third step of
W.(D.)
: 
    were the Crown witnesses sufficiently credible and reliable to prove the case
    beyond a reasonable doubt?  Accordingly, the respondent argues, the trial judge
    proceeded correctly.

[27]

Finally, the
    respondent submits that the trial judge did not err in considering B.N. and
    E.M.s evidence across their counts. There is no basis to conclude that the
    trial judge erred in the application of the well-established test for the admission
    of similar fact evidence. The trial judge explicitly acknowledged the evidence
    in this case that the complainants discussed what happened and what they ought to
    do about it. However, there was no evidence of actual collusion, or tainting,
    or that the discussions influenced their evidence in any way. In the
    alternative, even if the trial judge erred in failing to determine on a balance
    of probabilities whether the evidence of E.M. and B.N. was tainted by
    collusion, this could not have affected the verdict as credibility was the only
    issue in the trial and the trial judge was clearly satisfied that both
    complainants were credible in and of themselves.

(5)

ANALYSIS

(a)

The Adequacy of the Trial Judges Reasons

[28]

It is a well-established
    legal principle that the reasons a judge gives in a criminal trial without a
    jury fulfill an important function in the trial process and where that function
    goes unperformed, the judgment may be vulnerable to reversal on appeal:
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869.

[29]

Speaking on
    behalf of the Supreme Court in
Sheppard
, Justice Binnie noted, at
    para. 21, that it is a reviewing courts task, not so much to extol the
    virtues of giving full reasons, which no one doubts, but to isolate those
    situations where deficiencies in the trial reasons will justify appellate
    intervention and either an acquittal or a new trial.

[30]

As the court
    laid out in
Sheppard
, at para. 28:

The mandate of the appellate court is to determine the
    correctness of the trial decision, and a functional test requires that the
    trial judge's reasons be sufficient for that purpose. The appeal court itself
    is in the best position to make that determination. The threshold is clearly
    reached, as here, where the appeal court considers itself unable to determine whether
    the decision is vitiated by error. Relevant factors in this case are that (i)
    there are significant inconsistencies or conflicts in the evidence which are
    not addressed in the reasons for judgment, (ii) the confused and contradictory
    evidence relates to a key issue on the appeal, and (iii) the record does not
    otherwise explain the trial judge's decision in a satisfactory manner. Other
    cases, of course, will present different factors. The simple underlying rule is
    that if, in the opinion of the appeal court, the deficiencies in the reasons
    prevent meaningful appellate review of the correctness of the decision, then an
    error of law has been committed.

[31]

However, the
    Court also emphasized, at para. 33, that the absence or inadequacy of reasons
    is not a freestanding ground of appeal:

A more contextual approach is required. The appellant must show
    not only that there is a deficiency in the reasons, but that this deficiency
    has occasioned prejudice to the exercise of his or her legal right to an appeal
    in a criminal case.

[32]

The Court
    formulated three categories of cases in which deficient reasons could occasion
    such prejudice:

1.

Allegation of unreasonable verdict cases;

2.

Allegation of error of law cases; and

3.

Miscarriage of justice cases.

[33]

Upon my review
    of the record, the present case falls under the second category of cases. Under
    this category, the issue is whether, short of an unreasonable verdict, the
    trial judges reasons fail to articulate reasons in relation to key issues. If
    so, the appropriate remedy is to order a new trial. As Justice Binnie described,
    at para. 42, for purposes of appellate review, the duty to give reasons is
    driven by the circumstances of the case rather than abstract notions of
    judicial accountability. Again, he explained, at para. 46:

[W]here the path taken by the trial judge through confused or
    conflicting evidence is not at all apparent, or there are difficult issues of
    law that need to be confronted but which the trial judge has circumnavigated
    without explanation, or where (as here) there are conflicting theories for why
    the trial judge might have decided as he or she did, at least some of which
    would clearly constitute reversible error, the appeal court may in some cases
    consider itself unable to give effect to the statutory right of appeal. In such
    a case, one or other of the parties may question the correctness of the result,
    but will wrongly have been deprived by the absence or inadequacy of reasons of
    the opportunity to have the trial verdict properly scrutinized on appeal. In
    such a case, even if the record discloses evidence that on one view could
    support a reasonable verdict, the deficiencies in the reasons may amount to an
    error of law and justify appellate intervention. It will be for the appeal
    court to determine whether, in a particular case, the deficiency in the reasons
    precludes it from properly carrying out its appellate function. [Emphasis
    removed.]

[34]

Finally, in his
    helpful but non-exhaustive propositions of law, at para. 55, Justice Binnie makes
    two points that are apposite to the present case:

Reasons acquire particular importance when a trial judge is
    called upon toresolve confused and contradictory evidence on a key issue,
    unless the basis of the trial judge's conclusion is apparent from the record,
    even without being articulated.



While it is presumed that judges know the law with which they
    work day in and day out and deal competently with the issues of fact, the
    presumption is of limited relevance. Even learned judges can err in particular
    cases, and it is the correctness of the decision in a particular case that the
    parties are entitled to have reviewed by the appellate court.

[35]

Two issues
    permeate the record in this case. First, there was ample evidence of the
    opportunity for the complainants and witnesses to have colluded. The trial
    judge acknowledged as much when he indicated, albeit in his summary of the
    appellants position on the similar fact application, that [t]he girls talked
    with each other. They discussed what had happened..

[36]

While I accept
    that there was no direct evidence that specific collusion or even a motive to
    collude existed, there was at least the opportunity for the complainants and
    the witnesses to have influenced and contaminated each others independent
    perspectives and recollections of the events through their communication of the
    events with each other, and their interaction leading up to and during their
    revelation of the events to their teacher and the principal. As this court held
    in
R. v.  B.(C.)
(2003), 171 C.C.C. (3d) 159, at para. 40:

Collusion can arise both from a deliberate agreement to concoct
    evidence as well as from communication among witnesses that can have the
    effect, whether consciously or unconsciously, of colouring and tailoring their
    descriptions of the impugned events.

While this by no means necessarily makes the
    complainants or witnesses evidence valueless, the opportunity for collusion
    must nonetheless be adequately addressed in this case.

(b)

The Opportunity for Collusion

[37]

The Supreme Court
    stated in
Handy
, at para. 104, that if collusion is present, it
    destroys the foundation on which admissibility is sought. This is because the
    trial judge cannot assess the objective improbability of coincidence without
    addressing the issue of whether the apparent coincidence is in fact the product
    of collusion:
Handy
, at para. 106.

[38]

In this case, there
    was evidence that E.M. and A.S. were best, best friends and B.N. and A.B.
    were close friends. More importantly, there was evidence of some
    communication among the complainants and witnesses. Therefore, before admitting
    the similar fact evidence, the trial judge was obligated to consider whether
    the Crown had proven on a balance of probabilities that the evidence was not tainted
    by collusion. This requirement is inherent in deciding whether, as a matter of
    law, the evidence has sufficient probative value to overcome the prejudice of
    its admission:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33,

at
    para. 41. Once he admitted the evidence, the trial judge was required to decide
    what weight, if any, to assign to it. Here, he was the trier of fact. Only once
    he concluded that he should accord the evidence some weight could the trial
    judge use the testimony of one complainant to support the credibility of the
    other complainant.

[39]

This issue was
    addressed by this court in
R. v. F.(J.)

(2003), 177
    C.C.C. (3d) 1 (Ont. C.A.). At para. 86,
Feldman J.A.
noted:

The Supreme Court has recently addressed the seriousness of the
    possibility that evidence has been tainted by collusion in the context of the
    treatment of similar fact evidence. In the cases of
R. v.

Handy
and
R. v.

Shearing
, the court held that before admitting
    similar fact evidence, the trial judge must be satisfied of its reliability and
    exclude it if not satisfied on a balance of probabilities that the evidence is
    not tainted by collusion. Once admitted, the jury must still be warned to
    assess the evidence carefully and to consider whether it can be considered
    reliable given the possibility of deliberate or accidental tainting by
    collusion among the witnesses (
Shearing
at para. 44). [Citations
    omitted.]

[40]

Unfortunately,
    other than the trial judges brief reference that [i]t is pointed out by the
    defence that in the circumstances of this case there is a significant
    possibility for collusion, the trial judge failed to otherwise mention the
    possibility of collusion in his judgment. It could be that he nonetheless
    appropriately considered it in his ultimate decision on the guilt of the
    accused. If he did, the appellant could be assured that the verdict was arrived
    at properly.

[41]

However, it
    could be that the trial judge failed to consider the possibility of collusion
    when he considered the effect of the similar fact evidence in his ultimate
    decision on the guilt of the accused. If he did, there was a reversible error
    of law in his reasoning. As this court also held in
B.(C.)
, when
    similar fact evidence is admitted and there is evidence of the possibility of
    collusion, which falls short of tainting the evidence so as to render it
    inadmissible, a trial judge must nonetheless instruct a jury of their duty to
    consider the possibility of collusion when assessing what effect to give to the
    similar fact evidence that they had heard. (See paras. 42-45.) Likewise, it
    was the duty of the trial judge in this case, as the trier of fact, to instruct
    himself to consider the possibility of collusion in his assessment of what effect
    to give the similar fact evidence in his ultimate decision on the guilt of the
    accused on the whole of the evidence.

[42]

The difficulty
    in this case is that on the reasons given, we cannot know if he did or did not
    do so. As such, on this issue, we are left in the position, in the terms used
    in
Sheppard
, where we cannot be sure of the path taken by the trial
    judge. There is more than one view of how the trial judge may have decided
    guilt and one such view would clearly constitute reversible error.

(c)

Failure to Explain how the Complainants' Version of Events was Accepted

[43]

The second issue
    that permeates the record in this case is the significant conflicting evidence
    between the complainants and the respective witnesses. Clearly, the thrust of
    the appellants strategy throughout his trial was to highlight the
    inconsistencies in the accounts of the incidents, as between the complainants
    and witnesses, as well as internally within the evidence of the complainants
    and witnesses over time.

[44]

In the end, it was also clear the trial judge accepted the
    evidence of the complainants and had significant difficulties with the evidence
    of the witnesses. While he well may have completely rejected the evidence of
    the witness A.B., being unable to rely upon any of [her] evidence, he merely
    indicated that he found the evidence of A.S. to have limited probative value.
    In either case, in his ultimate decision he made no mention whatsoever of the
    significant conflicts between their evidence and the evidence of the
complainants.

[45]

As this court
    made clear in
R. v. R.W.B.
, [2003] O.J. No. 3086 (C.A.), at paras. 2
    and 9, the trial judge need not deal with each and every inconsistency, and is
    in the best position to determine credibility and reliability. This court will
    defer where the trial judge gave adequate consideration to the submissions of
    counsel regarding the frailties of the evidence.

[46]

In this case, however, the trial judge did not conduct
    any analysis of the complainants credibility or reliability at all. Whether he
    scrutinized the reliability of their evidence to the same extent as that given
    by the witnesses A.S. and A.B. is not
clear from his reasons. While he
    ultimately stated that he accepted the complainants version of events beyond a
    reasonable doubt, it is impossible to chart the path he took to that
    conclusion.

[47]

Once again, it
    may be that the trial judge appropriately considered the conflicting and
    sometimes confusing evidence of the witnesses while considering the evidence of
    the complainants. However, on the reasons given it may also be that he gave no
    consideration in his ultimate decision of even the residual probative value
    there may have been at least in the evidence of A.S.. I do not know. In the
    terms used in
Sheppard
, there are significant inconsistencies or
    conflicts in the evidence, which the trial judge has circumvented without
    explanation. While the respondent is correct that the appellant did not testify
    or call a positive defence, the appellant did vigorously challenge the evidence
    by eliciting conflicting evidence that was capable of calling into question the
    credibility and reliability of the evidence of the complainants, the central
    issue in this case. This court recently dealt with the scope of
W.(D.)
in
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197. Blair J.A.,
    speaking for the court, carefully and thoroughly reviewed the proper
    application of
W.(D.)
, and concluded at para. 114:

What I take from a review of all of these authorities is that
    the principles underlying
W.(D.)
are not confined merely to cases
    where an accused testifies and his or her evidence conflicts with that of Crown
    witnesses. They have a broader sweep. Where, on a vital issue, there are
    credibility findings to be made between conflicting evidence called by the
    defence
or arising out of evidence favourable to the defence in the Crown's
    case
, the trial judge must relate the concept of reasonable doubt to those
    credibility findings. [Emphasis added.]

[48]

In fairness to
    the trial judge,
B.D.
was decided after his decision in the present
    case. Nonetheless, in a case in which the main thrust of the defence is
    directed at eliciting conflicting evidence from the complainants and the
    eyewitnesses to the alleged offences, it was incumbent on the trial judge to
    have at least considered whether those conflicts or inconsistencies raised a
    reasonable doubt about the evidence supporting a conviction. From his reasons,
    particularly the culminating paragraph, which is the heart of the decision, it
    is not apparent that he did so. While we might assume he did,
Sheppard
makes it clear that, [e]ven learned judges can err in particular cases, and it
    is the correctness of the decision in a particular case that the parties are
    entitled to have reviewed by the appellate court. In the circumstances of this
    case, the deficiency in the reasons precludes me from properly carrying out this
    appellate function.

(6)

DISPOSITION

[49]

For these
    reasons, I would set aside the convictions and order a new trial. It is within
    the discretion of the Crown to decide whether it is in the interest of justice
    to proceed with a new trial.

Released: JL February 22, 2013

M.
    Tulloch J.A.

I
    agree J.I. Laskin J.A.

I
    agree R.G. Juriansz J.A.


