



WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.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

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

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

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




COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. C.G., 2021 ONCA 809

DATE: 20211116

DOCKET: C67069

Paciocco, Nordheimer and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.G.

Appellant

Eric S. Neubauer, for the appellant

Vallery Bayly, for the respondent

Heard: October 13, 2021 by video
    conference

On appeal from the convictions entered
    by Justice Stephen T. Bale of the Superior Court of Justice on March 29, 2019.

Nordheimer J.A.:

[1]

C.G. appeals from his convictions for sexual
    assault, sexual interference, invitation to sexual touching and breach of
    recognizance.
[1]

For the following reasons, I would allow the appeal and order a new trial.

A.

Background

[2]

The charges arose out of allegations made by the
    complainant, TH, who was between the ages of 11-14 years old at the time of the
    events. The appellants and THs families were very close. They travelled
    together and went on vacation together. TH and K, the appellants daughter,
    were cousins and best friends, and would often sleep over at each others houses
    continuously for weeks on end. TH alleged that the appellant had sexually
    assaulted her during some of her sleepovers with K.

[3]

TH gave evidence through her statement to the police,
    pursuant to s. 715.1 of the
Criminal Code
, R.S.C. 1985, c. C-46. She
    also gave
viva voce
evidence. She was the only witness for the Crown.
    The appellant testified in his own defence. He offered a straightforward denial
    of the allegations. He stated that he never entered K and THs room in the
    night, and never sexually touched TH. The defence also called members of the appellants
    family as witnesses.

[4]

THs evidence was that during some of the sleepovers
    at Ks house, at some point in the night, the appellant would attend the bed
    where she and K were sleeping, touch THs breasts and vagina under her clothes,
    including digital penetration, and occasionally make her touch and rub his
    penis, sometimes to the point of ejaculation. He would do this with one hand
    while standing over TH, never getting into bed with her. No words would be
    spoken. TH would feign sleep during the assaults.

[5]

TH stated that the location of the assaults
    changed because the location of Ks room changed. At first, K shared a room on
    the upper floor of the home with her younger sister, each sleeping in a single
    bed positioned across from each other. In 2016 or 2017, K started sleeping in a
    makeshift bedroom in the basement. TH had difficulty distinguishing between the
    assaults that occurred upstairs and those that occurred downstairs. She
    believed more had occurred in the basement bedroom. In either case, TH
    testified that the assaults occurred while she was sleeping in bed with K.

[6]

TH could not give concrete details about when
    the assaults started, or how frequently they occurred. At times, she guessed
    about these details, giving rise to inconsistencies. She testified she could
    not remember the last time an assault occurred but thought perhaps it was in
    the preceding several months. TH estimated she had been assaulted 15 times (or possibly
    more) over the course of the preceding three years. TH said, in her statement
    to the police, that the timing of the assaults during the night varied,
    depending on when K fell asleep and when the appellant got home from his night
    shifts at work. The assaults could occur at two, four, or even after seven
    oclock in the morning. In each case, she would be awake and K, along with
    everyone else in the house, was asleep.

[7]

In terms of the details of the assaults, TH
    testified that she would repeatedly roll away from the appellant, resisting, in
    an effort to remain on her stomach. In response, the appellant would forcefully
    roll her onto her back, again and again, in order to facilitate the assault. TH
    testified at trial that this occurred notwithstanding that she and K were so
    close in bed that they were touching. TH testified that neither K, nor Ks
    sister, who was in the opposite bed, woke up when this occurred. TH also testified
    that no one woke when the appellant entered the upstairs bedroom,
    notwithstanding that there was evidence that the house creaked  most notably,
    the bedrooms older flooring loudly creaked when anyone entered.

[8]

Ks evidence was that there was no room between
    her and TH in the bed. When they slept, they were touching each other. She
    described how the pair would be elbowing one another, or accidentally kick one
    another, or even roll on top of each other. She testified that inevitably, when
    this occurred, both woke up  sometimes falling right back to sleep, sometimes
    not. The Crown challenged K regarding what occurred when one of the pair had to
    go to the bathroom. K responded that if she had to go to the bathroom, and was
    against the wall, she would have to climb over TH and invariably wake her up.

[9]

TH gave varying evidence about her sleeping
    position, which she offered to explain how she tried to avoid the appellants
    assaults. On different occasions, she said:

(a)

that she would always ask K to allow her to
    sleep on the inside of the bed, against the wall, to avoid the appellant having
    access to her;

(b)

that K always slept on the inside, against the
    wall;

(c)

that she asked to sleep on the inside, but that
    K wanted to sleep on the inside, against the wall, because K sleepwalked;

(d)

that it was possible she had asked to sleep on
    the outside, not the inside, to prevent K from sleepwalking;

(e)

that she may have requested the outside sleeping
    position to avoid risk to K, notwithstanding her fear of the appellants
    assaults, and notwithstanding she had never seen K sleepwalk in the many times
    she had slept over.

[10]

In contrast, K confirmed that she used to
    sleepwalk and in the past TH had predominantly slept on the outside, closest to
    the door. This was at THs request and was not Ks preference. K testified that
    since her move to the basement, things had changed. She no longer sleepwalked. TH
    and K alternated who slept on the inside, closest to the wall. It was no longer
    routine for TH to be on the outside. The appellant and his wife both recalled
    there being some discussion of TH sleeping on the outside of the bed, and
    believed TH slept on the outside.

[11]

The appellant and his wife both testified that
    the appellant worked nights for the last 17 years, and specifically, the 10:30
    p.m. to 7:00 a.m. shift for the last eight years. For all but two nights per
    week, the appellant was not home overnight. The nights the appellant was home,
    he and his wife spent the evenings together. For this reason, and because their
    house was not large, his wife could not recall a time in the evenings where the
    appellant was home, but she did not know where he was for 10-15 minutes or
    more. She conceded the appellant might briefly go downstairs to retrieve
    something or attend the basement to switch off a light left on, but denied that
    there was any significant time when she did not know her husbands whereabouts
    in the home.

[12]

All witnesses agreed that the upstairs bedroom
    had a very creaky floor. This was corroborated by video evidence filed as an
    exhibit at trial. K testified that, whether upstairs or downstairs, she did not
    believe it was possible that someone could enter her room without waking her up.
    K attributed this to the creaky floor, being a light sleeper, the clattering of
    the clothes hangers on the back of the upstairs bedroom door, the creaky stairs
    to the basement, and the general way sound travelled in the house.

[13]

The appellant testified that his wife was a
    terrible sleeper, woke up easily, and would ask where he was going if he went
    to the bathroom during the night. His wife confirmed that she was a poor
    sleeper, and always woke up when the appellant would get up at night. She indicated
    that she had never woken up and found the appellant missing from the room. She testified
    that she did wake up at times because of creaks in the house or because the
    family dog was moving around. She explained that she usually was the one who
    investigated these noises, even when the appellant was home.

[14]

TH stated that, out of fear of reattending Ks
    house, she reluctantly told her mother what had happened. She testified that
    she only went to speak with the police because her mother made her go. She
    expressed that she delayed disclosing because she was scared it would break up
    their very close family and that she would not be believed.

[15]

Prior to TH disclosing the allegations, another one
    of Ks friends had alleged that the appellant had touched her breast. This
    allegation was the subject of separate charges against the appellant. TH
    indicated that her fears of disclosing were informed by this other allegation.
    TH stated that she feared that, like this other complainant, she would not be
    believed, and her friendship with K would cease.

[16]

In cross-examination, TH was confronted with the
    fact that she had made an unprompted offer to testify on behalf of the appellant
    in any trial involving this other allegation. She said she did not know whether
    she made such an offer, but conceded it was possible. She also testified that it
    was possible she had expressed that the appellant was not capable of doing
    such a thing, but she did not think she had said so. TH agreed this offer did
    not make sense if the appellant was abusing her, too.

[17]

One of the issues at trial was the nature and
    extent of discussions between the defence witnesses. The appellants wife
    testified that the appellants trial counsel showed her THs police statement while
    she was in his office with the appellant. The appellants wife was shocked by
    what she learned, because the statement was different from what TH originally
    disclosed. The appellants wife testified that, during long breaks in THs
    video statement, she and the appellant discussed the allegations with trial
    counsel, including why the allegations could not be true.

[18]

The appellants wife was cross-examined
    extensively on what information she shared about the allegations with her
    children. She indicated that K had overheard a family meeting and was therefore
    aware of the allegations from the outset. The appellants wife testified that
    Ks sister was also made aware that TH alleged that the appellant had sexually
    touched her during sleepovers. However, the appellants wife testified that in
    all of her discussions with her daughters, she was a mother first and was
    questioning them to find out whether the appellant had, in fact, touched
    anyone, and to provide a safe space for her daughters to disclose. When her daughters
    expressed their view that their father was innocent, the appellants wife
    reassured them that she believed this to be true as well.

B.

THE TRIAL JUDGES REASONS

[19]

The trial judge began his reasons by considering
    the reliability of the defence evidence, that is, the evidence of the
    appellant, his wife, and both of their daughters, K and her sister. The Crown
    argued that the defence evidence was unreliable because of the pre-trial
    discussions that had occurred among the witnesses. Although the Crown was not
    suggesting that these witnesses had advertently colluded, he did submit that
    the defence evidence was tainted by inadvertent collusion.

[20]

On this issue, the trial judge said, at para. 17:

While I do not dismiss the defendants
    evidence on this ground alone, the collusion is a factor to be taken into
    account in the final weighing of the evidence at the end of the trial.

[21]

The trial judge next turned to THs evidence. The
    defence had submitted that the evidence of TH was unreliable because she was
    inconsistent in several respects, such as regarding the number of assaults, the
    length of time that the assaults lasted, and the sleeping positions as between her
    and K.

[22]

The trial judge rejected this submission. He
    found that it offended the rule about after-the-fact conduct in such cases. In
    doing so, he quoted from
R. v. A.R.D
.
,

2017 ABCA 237, 422
    D.L.R. (4th) 471, affd 2018 SCC 6, [2018] 1 S.C.R. 218, where the Alberta
    Court of Appeal said, at para. 42:

Just like the failure to make a timely
    complaint, a failure to demonstrate avoidant behaviour or a change in behaviour
    
must not
be the subject of any presumptive adverse inference based upon
    now rejected stereotypical assumptions of how persons (particularly children)
    react to acts of sexual abuse. [Emphasis in original; citations omitted.]

[23]

The trial judge went on to say that the defence
    argument was, in essence, an argument that TH did not act in a manner that
    would have been expected if her allegations were true, and that an adverse
    inference should be drawn. The trial judge rejected that submission. He found,
    at para. 28:

In this case, in considering the complainants
    conduct, the court must consider it in context: she was afraid to report the
    touching because of the close bond between her family and Ks family; her close
    bond with K and [the appellants wife] would be jeopardized if she changed her
    behaviour and refused to sleep over at their house; she would have to explain
    her changed behaviour, notwithstanding that she was not yet ready to disclose;
    and again, the touching had taken place, perhaps, ten or fifteen times, over a
    three-year period.

[24]

Finally, in dealing with the challenges to THs
    evidence, the trial judge addressed the defence submission that THs
    allegations were inconsistent with her willingness to testify on behalf of the appellant
    regarding the allegation made by another friend of Ks. The defence argued that,
    if the appellant had assaulted TH, as she claimed, she would not have been
    willing to voluntarily offer to testify that the appellant was not the type of
    person who would do such things. The trial judge rejected this argument, again
    on the basis that it offended the after-the-fact conduct principle he had
    earlier cited. He also rejected the defence submission that, in general, the
    evidence of TH should not be believed.

[25]

Having dealt with those issues, the trial judge
    then, in the final paragraph of his reasons, addressed the issue of the guilt
    of the appellant. He said, at para. 35:

Defence counsel argues that the entire story
    told by the complainant is implausible, both because the accused would be
    taking a significant risk, and because he could not have committed the
    offences, without waking someone else in the house. However, after considering
    the complainants evidence, and the defence evidence, in the context of the
    trial evidence as a whole, and for the reasons given, I am unable to accept the
    evidence of the accused, and find that it does not raise a reasonable doubt as
    to his guilt. I do accept the evidence of the complainant, and find on the
    basis of that evidence that Crown counsel has proved the accuseds guilt, on
    all counts, beyond a reasonable doubt.

C.

ANALYSIS

[26]

In my view, the trial judge made three
    fundamental errors in his reasons leading to the convictions. One error deals
    with the issue of collusion; the second error deals with the lack of analysis
    of the competing evidence; and the third error deals with the application of
    the principles from
R. v. W. (D.)
, [1991] 1 S.C.R. 742. A new trial is
    required as a result of these fundamental errors.

(1)

Collusion

[27]

The trial judge said that collusion was a factor
    in assessing the defence evidence. While the trial judge did not characterize
    the collusion as between advertent collusion and what is commonly called inadvertent
    collusion, as the Crown submitted before us, a fair reading of his reasons demonstrates
    that the trial judge acceded to the Crowns submission that the defence
    evidence was tainted by inadvertent collusion. The difficulty with the trial
    judges conclusion on this point is two-fold. First, it is implicit in his
    comments that the trial judge accepted that the evidence of the defence
    witnesses was diminished by this inadvertent collusion. Yet the trial judge never
    explains how he took the inadvertent collusion into account in his assessment
    of the defence evidence, apart from stating that he does not dismiss the
    defence evidence on this ground alone. Second, in spite of his evident
    acceptance that tainting had occurred, the trial judge failed to explore how the
    inadvertent collusion altered the evidence of each of the defence witnesses,
    if at all.

[28]

As I have intimated, the term collusion has
    been used to describe two different phenomena. The first is deliberate or advertent
    collusion, that is, where witnesses get together and fashion their evidence in
    concert in order to appear to be reciting a consistent and reliable story. The
    other, commonly referred to as inadvertent collusion, occurs where one
    witness discusses the events with another witness with the consequence that the
    evidence of one or both of them may be altered. Put another way, a witness
    evidence may be inadvertently impacted by the fact that they have heard the
    evidence of other witnesses which can have the effect, whether consciously or
    unconsciously, of colouring and tailoring their descriptions of the impugned
    events:
R. v. B. (C.)
(2003), 171 C.C.C. (3d) 159 (Ont. C.A.), at
    para. 40. This point was made in
R. v. F. (J.)
(2003), 177 C.C.C. (3d)
    1 (Ont. C.A.), where Feldman J.A. said, at para. 77:

The reliability of a witnesss account can be undermined
    not only by deliberate collusion for the purpose of concocting evidence, but
    also by the influence of hearing other peoples stories, which can tend to
    colour ones interpretation of personal events or reinforce a perception about
    which one had doubts or concerns.

[29]

While the issue of collusion most often arises
    when a court is considering the admissibility of similar fact evidence, it is
    an issue that has relevance to the evaluation of a witness evidence in
    general.

[30]

As this case illustrates, it is unfortunate that
    the term inadvertent collusion has been coined. As I will explain, advertent
    collusion affects the credibility of evidence. Inadvertent collusion, or
    accidental tainting, does not do so. It affects only the reliability of such
    evidence. As a result, an entirely different analysis is required in
    determining the impact that inadvertent collusion may have on the evidence in
    question. Yet the term inadvertent
collusion
 obscures this because the
    term collusion connotes conspiracy, which is a credibility concern. It would
    be better if the term inadvertent collusion was avoided and replaced by the
    term inadvertent tainting. Given that the term inadvertent collusion was
    used during the matter before us, I will continue to refer to inadvertent
    collusion but as I say, that is a term that would best be avoided going
    forward.

[31]

I will begin with advertent collusion. It is
    self-evident that this first form of collusion is particularly problematic.
    Deliberate collusion among witnesses will inevitably undermine the credibility of
    the evidence given. No court would be comfortable relying on evidence from
    witnesses who have gotten together and decided on what they are going to say
    when questioned under oath, at least not without independent corroborating
    evidence establishing that their evidence is reliable, notwithstanding the
    collusion.

[32]

The second form of collusion, inadvertent
    collusion, is more difficult. The fact that one witness has heard what another
    witness will say, or for that matter has even discussed what another persons
    recollections were, does not mean that either witness is not telling the truth,
    or is not giving their independent recollection, or that their evidence has
    been tainted. Indeed, even where the evidence of one of the parties to the discussion
    is inadvertently affected by what another person has said, the account of that
    other person may not change. For example, in this case, it is possible that
    when, during the joint meeting with the defence lawyer, the appellants wife offered
    reasons why the appellant could not be guilty, the appellant did innocently incorporate
    those reasons into his testimony, but that does not mean that his wifes observations
    were inaccurate or that her testimony had changed as a result of their
    discussion. Nor does it necessarily follow that the appellants testimony
    became unreliable. He may have recognized from his own knowledge the truth and
    importance of what his wife had observed. The key point is that, unlike
    advertent collusion which corrupts the evidence of all participants, where
    inadvertent collusion has occurred, a close examination is required to
    determine what impact that innocent sharing of information may have had on the
    evidence of each of the witnesses who is a party to the exchange. As Sopinka J.
    said in
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 45:

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.]

[33]

The problem in this case is that the trial judge
    does not address whether the fact that the defence witnesses discussed the
    events, thus giving rise to the possibility of inadvertent collusion, did, in
    fact, lead to one or more of them altering their evidence and, if so, in what
    respect.

[34]

This problem is part of a larger concern with
    respect to the trial judges treatment of the defence evidence. There is no weighing
    of the defence evidence at all. Rather, the trial judge moved from his generic conclusion
    on the collusion issue directly to considering the evidence of the complainant.
    He never returned to the defence evidence, and more importantly to the
    appellants evidence, and never engaged in the weighing of it that he had
    earlier said he would do. This same situation arose in
R. v. Burnie
,
    2013 ONCA 112, 294 C.C.C. (3d) 387, where Tulloch J.A. said, at paras. 41-42:

[I]t 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.

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.

[35]

Had the trial judge undertaken an analysis of
    the defence evidence, in light of the possibility of inadvertent collusion, he
    would have had to consider that there was independent evidence that tended to
    support at least some of the evidence provided by the defence witnesses, which
    was incapable of being tainted by collusion. In particular, on this point, there
    was the uncontradicted evidence, supported by video evidence, of the creaking
    of the bedroom floor. However, this evidence is not mentioned by the trial
    judge. He does not address how that evidence might have supported the defence
    position, and thus discounted any problems arising from the suggestion of
    collusion. Simply put, the witnesses could not have colluded to make the floor
    creak.

[36]

To a similar effect was the evidence of the hangers
    on the bedroom door that would have made noise if the door was opened. This
    evidence is also not mentioned by the trial judge, although it was not
    challenged at trial. Again, inadvertent collusion would not undermine the
    probative value of this evidence.

[37]

As indicated, the trial judge was obliged to
    consider whether, if there was inadvertent collusion, it actually affected the
    evidence of the various defence witnesses. In that regard, the trial judge had
    to consider the nature of the discussions that took place between these
    witnesses. For example, the trial judge had to consider the explanation of the
    appellants wife that she spoke with their daughters because she wanted, as a
    mother, to provide an opportunity for them to safely disclose if they had
    witnessed any improper conduct by the appellant. It was with that stated
    purpose in mind that she spoke to their daughters about the allegations. The
    trial judge had to consider whether the content of the discussions, in those
    circumstances, led to any impairment of the evidence given.

[38]

In considering the impact of any inadvertent
    collusion with respect to each individual witness, the trial judge also had to
    consider that one of those witnesses was the appellant. As the Crown
    acknowledged in closing submissions, the appellant could not be found to have
    been tainted by collusion only through his access to, and review of, the
    disclosure in the case, which included the police statement of TH. The trial
    judge could not approach the issue of collusion in the same fashion with
    respect to the appellant as he might with respect to the other defence
    witnesses, because of the appellants right to disclosure. And, once again, the
    trial judge had to consider whether those discussions led to any impairment of
    the evidence given.

[39]

Lastly, the trial judge would also have had to
    consider that these discussions occurred among members of the same family,
    i.e., father, mother, and daughters, faced with serious allegations made against
    one parent. Some discussion was inevitable in those circumstances. The impact
    of those discussions, if any, was the crucial issue. In the end result, none of
    this analysis was done. Simply put, the trial judges collusion analysis is too
    general and conclusory to constitute a proper evaluation of the evidence
    offered by each defence witness.

[40]

Consequently, we are left in the same position
    as this court was left in
Burnie
. I am unable to determine the impact,
    if any, of the finding of inadvertent collusion on the trial judges
    assessment of the credibility and reliability of each of the defence witnesses.
    This problem is exacerbated by the fact that the trial judge clearly said that
    he was not prepared to use collusion as a basis to reject the defence evidence.
    It was then incumbent on the trial judge to address this issue in his
W.
    (D.)
analysis, including why the defence evidence did not raise a
    reasonable doubt, given that collusion alone was not a basis for rejecting the
    defence evidence. As I shall discuss later in these reasons, there was no such
    analysis.

(2)

The Absence of Analysis of the Competing Evidence

[41]

The trial judge moved from his finding regarding
    inadvertent collusion, as it related to the defence evidence, to his
    consideration of THs evidence. He dealt with many, but not all, of the issues
    raised regarding the credibility and reliability of THs evidence. It is
    notable, however, that the trial judge did not engage in a similar assessment of
    the evidence of the defence witnesses. Indeed, he never returned to the defence
    evidence, save for a generalized comment about the appellants evidence at the
    end of his reasons.

[42]

The appellant says that the trial judge failed
    to address certain critical flaws in THs evidence. The respondent says that
    the trial judge was not obliged to address each and every issue that was raised
    as it related to THs evidence. While the respondent is correct that a trial
    judge is not required to address each and every piece of evidence, a trial
    judge is required to address crucial evidence that bears directly on the
    credibility and reliability of a witness.

[43]

In this respect, there were two particularly
    important pieces of evidence that directly impacted on THs evidence, but which
    the trial judge did not address. One is THs evidence that the appellant, in
    committing the assaults, had to roll her over forcefully as she attempted to
    remain on her stomach to avoid the unwanted touching. This evidence is of particular
    significance, given that TH was sharing the bed with K. Indeed, the evidence
    was that they were so close together that they were touching while they slept.
    Yet, on THs evidence, the appellant forcefully rolled her over in order to
    assault her without ever waking K. The surface improbability of that being able
    to take place required the trial judges attention. He was obliged to resolve
    that issue in terms of his conclusion that THs evidence established the guilt
    of the appellant beyond a reasonable doubt. Yet this resolution never took
    place.

[44]

The second important piece of evidence related
    to the opportunity for the appellant to commit these offences. In that regard,
    the evidence was that the appellant worked night shifts, that he was only home
    on two nights per week, that he spent the nights when he was home with his
    wife, that his wife was a light sleeper who said she would be awoken if the
    appellant left their bed, and that she could not recall any instance of her
    awaking and finding the appellant absent. In addition to this evidence, of
    course, is the evidence of the creaky floors in the house.

[45]

All of this evidence led to the obvious
    submission from the defence that the appellant had no opportunity to commit the
    offences without being discovered. The trial judges response to this defence
    submission is of concern for two reasons. One is that the trial judge does not
    deal with this submission directly in his reasons. The other is the manner in
    which the trial judge dealt with it during closing submissions. At that time,
    the trial judge said:

As far as why would he take that risk, I think
    sex offenders take incredible risks all the time and, so you, I mean, you hear,
    well why would he ever take that risk when somebody was next door or whatever
    it was, but thats just the nature of those  of that type of offence, and
    thats why in this court, the majority of the cases that we hear are sex offences
    Because theyre prepared to take those incredible risks.

[46]

It is unclear to me how the trial judge may have
    used his view, on this point, in deciding this case. It cannot reasonably be
    disputed that some sex offenders take incredible risks, and trial judges are
    entitled to reject an implausibility argument that is based on the unlikelihood
    that the accused would have taken the risks required to commit the offence with
    which they are charged. But here, the trial judge appears to be expressing a
    universal truth that all sex offenders take incredible risks, which would
    constitute an inappropriate stereotype about how sex offenders behave. Even if
    the trial judge was not intending to express a universal truth, he was at least
    of the view that incredible risk-taking is commonplace. If that was the trial
    judges approach, then he erred in doing so. Not only is it arguable that this
    too would be an inappropriate stereotype about how sex offenders behave, judicial
    notice cannot be taken of such a contention as if it was a fact. Assuming such
    a fact could be established, it would require a proper evidentiary foundation. A
    third possibility is that the trial judge was relying on his personal knowledge
    or experience as proving that fact. This also would be an error. A trial judge
    cannot judicially notice a fact within his or her personal knowledge unless the
    criteria of notoriety or immediate demonstrability are present:
R. v. J.M.
,
    2021 ONCA 150, 154 O.R. (3d) 401, at paras. 50-54. In either event, while the
    trial judge mentions the risk point in the final paragraph of his reasons, he
    fails to deal with it.

[47]

The failure of a trial judge to address material
    evidence constitutes a misapprehension of the evidence. As Doherty J.A. said in
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 538:

A misapprehension of the evidence may refer to
    a failure to consider evidence relevant to a material issue, a mistake as to
    the substance of the evidence, or a failure to give proper effect to evidence.

[48]

The two pieces of evidence to which I have
    referred were relevant to a material issue, that is, the credibility and
    reliability of THs evidence. The trial judges failure to both mention these
    pieces of evidence, and to deal with them in his analysis, constitutes an error.
    In this case, given its importance in the overall
W. (D.)
analysis, to
    which I now turn, this constitutes an error of law that has the effect of
    rendering the verdicts unreasonable.

(3)

The
W. (D.)
Analysis

[49]

The principle from the decision in
W. (D.)
is well-known. Yet it has caused more than its fair share of problems in its
    application since the principle was enunciated more than thirty years ago. It
    is, perhaps, worthwhile setting out the principle again, as taken from p. 758 of
    the decision:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
    the evidence of the accused, you must ask yourself whether, on the basis of the
    evidence which you do accept, you are convinced beyond a reasonable doubt by
    that evidence of the guilt of the accused.

[50]

Since the decision, the application of the
    principle has been written about frequently, and its proper application both
    debated and refined. For the purposes of this case, two refinements of the
    principle are relevant. One is that it is not necessary for a trial judge,
    sitting alone, to recite the principle in its precise terms as it appears above:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7;
R. v.
    Debassige
, 2021 ONCA 484, at para. 127. It is sufficient that the
    principle was, in fact, applied, even if not expressly recited.

[51]

In this case, the only application of the
    principle appears in the final paragraph of the trial judges reasons, as I
    have set out in para. 25 above. While that brief mention would be sufficient to
    show that the trial judge was alert to the principle, what is missing in this
    case is any analysis leading up to the trial judges conclusion as to its
    proper application. In particular, there is no discussion or analysis of the
    appellants evidence, or why the trial judge rejected it, or why the trial
    judge found that it did not raise a reasonable doubt, either on its own or in
    conjunction with the rest of the defence evidence.

[52]

That problem leads into a consideration of the
    second refinement of the principle from
W. (D.)
. That second
    refinement arises from this courts decision in
R. v. D. (J.J.R.)
(2006),
    215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
    69. In that case, the issue of a trial judges failure to provide express
    reasons for rejecting the accuseds evidence, in the context of the application
    of the principle from
W. (D.)
, was raised. In concluding that the
    trial judges reasons for rejecting the accuseds evidence were capable of
    being discerned from the record, Doherty J.A. said, at para. 53:

An outright rejection of an accuseds evidence
    based on
a considered and reasoned acceptance beyond a reasonable doubt of
    the truth of conflicting credible

evidence
is as much an explanation
    for the rejection of an accuseds evidence as is a rejection based on a problem
    identified with the way the accused testified or the substance of the accuseds
    evidence. [Emphasis added.]

[53]

The decision in
D. (J.J.R.)
permits a
    conclusion that a trial judges considered and reasoned acceptance of the
    complainants evidence is a sufficient basis to explain the trial judges
    rejection of an accused persons evidence and, similarly, to explain why that
    evidence does not raise a reasonable doubt. In that case, Doherty J.A. set out
    all of the trial judges findings regarding his acceptance of the complainants
    evidence and, importantly, the confirmation of it that could be found in the complainants
    diary, a contemporaneous record of the events. Indeed, Doherty J.A. referred to
    the diarys credibility enhancing effect in his reasons: at para. 54.

[54]

The decision in
D. (J.J.R.)
provides a
    route for an appellate court to be satisfied that, despite the failure to
    follow the step-by-step analysis from
W. (D.)
, the trial judge nevertheless
    properly applied it. What the decision in
D. (J.J.R.)
does not do,
    however, is provide an answer to the failure of a trial judge to avert to
    exculpatory evidence that stands unchallenged. The failure to advert to such
    evidence, and to address it, means that the acceptance of the complainants
    evidence is neither considered nor reasoned. This point was made in
R. v.
    C.L.
, 2020 ONCA 258, 387 C.C.C. (3d) 39, where Paciocco J.A. said, at
    para. 33:

In contrast, those same terms, considered and
    reasoned, offer no guidance to a trier of fact about when it is appropriate to
    convict in the face of exculpatory evidence that has no obvious flaws.

[55]

It is the problem identified in
C.L.
that arises in this case. There was clear exculpatory evidence, much of which
    was undisputed. That evidence included the creaky bedroom floor, the clothes
    hangers on the door, the evidence regarding the appellants wife being a light
    sleeper, the hours during the night when the appellant was at work, the rolling
    over of TH, and like matters. The trial judge fails to address any of this
    evidence, or explain why it would not, at least, raise a reasonable doubt. As a
    result, his analysis of the evidence of TH does not provide a reasoned and
    considered basis for believing her evidence beyond a reasonable doubt, in the
    face of exculpatory evidence from the appellant.

[56]

The respondent strives to avoid these problems
    by characterizing the trial judges reasons as being generally sufficient and, also,
    by invoking the principle derived from
R. v. G.F.
,

2021 SCC 20,
    459 D.L.R. (4th) 375, that an appellate court must not finely parse the trial
    judges reasons in a search for error: at para. 69. The decision in
G.F.

reaffirms the important message that appeal courts should not be too ready
    to overturn the factual conclusions made by trial judges and should not assume
    that errors have occurred when errors are not evident. However,
G.F.

does not direct appeal courts to overlook or disregard material reasoning
    errors, nor does it dispense with the need for trial judges to give adequate
    reasons for their decisions before stigmatizing and punishing someone as a sex
    offender.

[57]

The Crowns submission that we should not
    interfere with the trial judges decision in this case ignores the fundamental
    problems that exist in the trial judges reasoning. I do not suggest that trial
    judges are required to show that they considered every piece of evidence or that
    they have responded to each and every argument raised by counsel. However, that
    approach does not obviate the need for trial judges to address significant
    pieces of evidence that have a direct impact on the issue of guilt. The reasons
    must explain the what and the why:
R. v. R.E.M.
, 2008 SCC 51,
    [2008] 3 S.C.R. 3, at para. 17. More specifically, trial judges are obliged to
    address significant exculpatory evidence, the presence of which makes a finding
    of guilt beyond a reasonable doubt unthinkable, or at least highly unlikely,
    absent a thorough explanation of why it does not.

[58]

The respondent explains the trial judges
    conclusion by saying that once the trial judge weighed the evidence he had
    found to be tainted along with his acceptance of the complainants evidence, he
    rejected the appellants evidence and found it did not raise a reasonable doubt.
    While that is undoubtedly an accurate recitation of the trial judges reasons,
    like those reasons, this submission fails to provide the necessary explanation as
    to why the trial judge found that the evidence proved the offences beyond a
    reasonable doubt. More importantly, that submission does not explain why the
    unchallenged exculpatory evidence failed to raise a reasonable doubt.

[59]

This requirement is central to the purpose for
    reasons. It is so the accused and the public can know why the conclusion was
    reached, along with providing the opportunity for meaningful appellate review.
    This point has been made in many decisions of the Supreme Court of Canada and
    of this court. It is aptly put in
R. v. Gagnon
, 2006 SCC 17, [2006] 1
    S.C.R. 621, where the majority said, at para. 21:

This does not mean that a court of appeal can
    abdicate its responsibility for reviewing the record to see whether the
    findings of fact are reasonably available. Moreover, where the charge is a
    serious one and where, as here, the evidence of a child contradicts the denial
    of an adult, an accused is entitled to know why the trial judge is left with no
    reasonable doubt.

[60]

The trial judge does not address the exculpatory
    evidence. He does not explain why that exculpatory evidence did not corroborate
    the appellants denial of the events, nor, at the very least, why it did not
    raise a reasonable doubt. The trial judges reasons do not perform the
    fundamental purpose for which reasons are required. Those failures mean that
    this court cannot be satisfied that the fundamental point made in
G.F.
,
    at para. 82, has been answered:

[W]hether the trial judge turned their mind to
    the relevant factors that go to the believability of the evidence in the
    factual context of the case, including truthfulness and accuracy concerns.

[61]

To borrow the language of
G.F.
,

the
    reasons in this case are not factually sufficient: at para. 71. A review of
    the record does not provide that sufficiency. Indeed, it does the opposite. It
    reveals the exculpatory evidence, which is left unmentioned and unaddressed in
    the trial judges reasons. Even if one completely rejects the evidence of the
    appellant, his wife, and their daughters, on the basis that their evidence is
    tainted  a conclusion that the trial judge himself was not prepared to make 
    this does not explain why the appellants denial of the events was not found to
    raise a reasonable doubt, when it can be seen as being corroborated by the
    exculpatory evidence offered.

D.

Conclusion

[62]

The appeal is allowed,
    and a new trial is ordered.

Released: November 16, 2021 David M.
    Paciocco J.A.

I.V.B.
    Nordheimer J.A.

I agree. David
    M. Paciocco J.A.

I agree. J.A. Thorburn
    J.A.





[1]

While the appellant originally also sought leave to appeal
    the sentence imposed, he subsequently abandoned the sentence appeal.


