



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. R.P., 2020 ONCA 637

DATE: 20201009

DOCKET: C66242 & C66401

Watt, Harvison Young and Coroza JJ.A.

DOCKET: C66242

BETWEEN

Her Majesty the Queen

Respondent

and

R.P.

Appellant

DOCKET: C66401

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.P.

Respondent

Margaret Bojanowska, for the appellant/respondent by way
    of cross-appeal

Amanda Rubaszek, for the respondent/appellant by way of
    cross-appeal

Heard: in writing

On appeal by R.P. from the conviction entered on July 10,
    2018 by Justice Irving W. André of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 4288.

On appeal by the Crown from the sentence imposed on December
    13, 2018.

Harvison Young J.A.:

A.

Overview

[1]

In 2018, the appellant was convicted of one count of sexual interference
    in relation to the complainant (C.H.), his step-daughter. He was sentenced to
    a conditional sentence of imprisonment of 2 years less one day. The offence allegedly
    took place in 2012, when the complainant was around 10 years old.

[2]

The appellant challenges the conviction on the basis that the trial
    judge committed a number of errors assessing credibility, which was the only
    issue in this three-day trial. In particular, the appellant claims that the
    trial judge erred in his treatment of the motive to fabricate, failed to
    adequately scrutinize numerous and material inconsistencies in the evidence,
    misused a prior consistent statement of the complainant, and did not apply the
    second limb of test outlined in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The
    Crown appeals from the conditional sentence of two years less a day and asks
    this court to impose a sentence of imprisonment of 3 years.

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial. As such, it is not necessary to consider the sentence appeal.

B.

Factual Background

[4]

In January 2016, when C.H. was 14, she told her guidance counsellor at
    school that she was not getting along with her mother and the appellant, with
    whom she lived at home. She had decided that she wanted to live somewhere else.
    In the course of this discussion with her guidance counsellor, the complainant
    disclosed that the appellant had sexually assaulted her a few years earlier. Later
    that day, the complainant gave a videotaped statement to the police.

[5]

The complainant alleged that she had been home alone with the appellant.
    She went into the guest room, which was across the hall from the master bedroom,
    and asked the appellant a question. She laid down on the bed in the guest room.
    The appellant tried to take off the complainants pants and open her legs and
    then got on top of her. She told him to stop but he persisted. He attempted to
    penetrate her but did not succeed. The complainant told the police the
    appellant used a condom.

[6]

The trial took place over three days in May 2018. The complainant (then
    about 16) and one of her older sisters testified as Crown witnesses. The
    complainants videotaped statement to the police was also admitted as part of
    the Crowns case. C.H.s mother (the appellants wife) was the only defence
    witness.

[7]

The complainants evidence at trial was that when she disclosed the
    incident to her guidance counsellor, she had already decided that she would
    leave home even if the Childrens Aid Society (CAS) did not become involved. She
    acknowledged that she was aware that the sexual assault allegation would have
    an impact on where she could live, in that she thought she would move to CAS.
    She also acknowledged that, at the age of 14, it was not a real possibility for
    her to leave home on her own.

[8]

The sister testified that C.H. had disclosed the assault to her within a
    week of the assault occurring. The sister testified that the complainant was
    very emotional at that time, and that she had cautioned C.H. that this
    allegation would have serious repercussions for everyone if she was lying. I
    will return to this evidence later, as it concerns the complainants prior
    consistent statement that the appellant submits was improperly used to
    corroborate the complainants account about the assault.

[9]

The mother testified about the complainants behavioural problems at
    school and at home. She said the problems began when C.H. was very young and
    long before the appellant had moved in and they were married. She said the
    complainant had a motive to lie, because the complainant did not like the
    appellant and did not want him living in their home. She denied that the
    complainant told her about the incident shortly after it occurred, saying that
    the first she heard about it was when the police contacted her in 2016.

[10]

The
    mother did say that when the complainant was somewhere around nine to eleven
    years old, the complainant told her that the appellant had asked her if she had
    ever had sex; that the appellant had been very upset when confronted about this
    accusation; and that she had decided that she did not believe her daughter. She
    also stated that if she had been told that the appellant had sexually assaulted
    C.H., she would have reported it to the police.

[11]

In
    convicting the appellant, the trial judge found the mother was not credible. He
    accepted the complainants testimony about the assault, finding her credible.
    In finding C.H. to be credible, he emphasized her sisters testimony, particularly
    her evidence that the complainant had been very emotional and had stuck to her
    story despite being warned about lying.

C.

Issues on appeal

[12]

The
    grounds of appeal from conviction are interrelated and concern different
    aspects of credibility assessment. As the parties acknowledge, credibility was
    the only issue at trial. While deference is generally owed to assessments of
    credibility, such assessments must be undertaken within the context of the
    presumption of innocence and the requirement that guilt be proved beyond a
    reasonable doubt.

[13]

The
    appellant claims that the trial judge erred in a number of ways, including:

1)

his
    treatment of the complainants motive to fabricate;

2)

failing to
    address material inconsistencies in the evidence;

3)

his use of
    the complainants prior consistent statement, which was introduced into
    evidence by the sisters testimony; and

4)

failing to
    consider whether the mothers evidence raised a reasonable doubt pursuant to
    the second step of
W.(D.)
.

[14]

I
    will address these issues in turn.

D.

Analysis

(1)

Motive to fabricate

[15]

There
    was no dispute at trial that, at the time that the complainant went to the
    guidance counsellor in January of 2016, she was unhappy and wanted to leave
    home. This was a key pillar of the defence theory at trial, which was that the
    complainant had fabricated the allegation as a way of getting out of the house.
    The Crown called the sister as a witness at trial in part to rebut this recent
    fabrication argument.

[16]

As
    Doherty J.A. noted in
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.), at
    para. 120:

It is difficult to think of a
    factor which, as a matter of common sense and life experience, would be more
    germane to a witness' credibility than the existence of a motive to fabricate
    evidence.

[17]

Here,
    the trial judge found that that the complainants testimony contradict[ed]
    this alleged motive for fabricating a story. The trial judge highlighted C.H.s
    testimony that, on the day she disclosed the incident to the guidance
    counsellor, she had already decided that she was going to leave home, even if CAS
    did not get involved.

[18]

It
    is not clear, however, that this reasoning meaningfully addresses or resolves
    the recent fabrication argument. The complainants testimony that she would
    leave home, even without CAS involvement, does not necessarily negate a motive
    to fabricate. It is just as likely that the complainant made the allegation to
    bolster the chances of CAS becoming involved, as CAS had with her older sister
    (for unrelated reasons). As the complainant acknowledged, it would have been
    hard for her to leave home at 14 years old without support.

[19]

Moreover,
    the motive to fabricate argument had some strength given the tensions at home,
    which predated the alleged incident. This called for a closer examination of
    the complainants credibility, and of the various alleged inconsistencies in
    the evidence, which I will review in more detail shortly. However, the trial
    judge did not engage in the necessary close examination.

[20]

One
    particularly relevant but unaddressed inconsistency on this issue was that the
    sister testified that she had spoken to the complainant about going into the
    care of CAS, both in terms of her own experience, and also as an option for the
    complainant. The sister agreed in cross-examination that she told C.H. that C.H.
    would go into CAS care if she told an adult or guidance counsellor about the
    assault. The complainant, however, denied having conversations with her sister
    that she might be better off with CAS or a foster family. This conflicting
    evidence went directly to the complainants credibility and her motive to
    fabricate an allegation to leave home (perhaps with the assistance of CAS), but
    this is not addressed in the reasons. Given the centrality of credibility in
    this case, these issues required greater scrutiny.

(2)

Material inconsistencies

[21]

The
    appellant submits that the trial judge failed to address a number of material
    inconsistencies in the evidence. These inconsistencies were material, as they concerned
    issues critical to a credibility assessment, such as the manner of the
    complainants disclosure, the details of the alleged sexual incident, and as
    mentioned earlier, the complainants potential motive to fabricate the
    allegation. The Crown submits that the alleged inconsistencies were either
    immaterial or were not, in fact, inconsistencies. As this court has outlined in
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14:

A trial judge giving reasons for
    judgment is neither under the obligation to review and resolve every
    inconsistency in a witness evidence, nor respond to every argument advanced by
    counsel. That said, a trial judge should address and explain how she or he has
    resolved major inconsistencies in the evidence of material witnesses.
    [Citations omitted.]

[22]

It
    would be an error of law to suggest presumptions about a childs timing and
    manner of disclosure. A childs sense of timing may be different from that of
    adults. However, it is also the case that the credibility and reliability of a
    childs evidence, like that of any witness, still require careful assessment
    and scrutiny by the trier of fact:
R. v. W.(R.)
, [1992] 2 S.C.R. 122,
    at p. 134;
R. v. B.(G.)
, [1990] 2 S.C.R. 30, at p. 55. To suggest
    otherwise would undermine the presumption of innocence and the requirement that
    guilt be proven beyond a reasonable doubt.

[23]

In
    my view, the trial judge did not adequately address the major inconsistencies
    in the evidence.

[24]

I
    will only review the main inconsistencies. These relate to the question of
    when, how, and to whom the complainant disclosed, and to the details given by
    the complainant of the assault.

(a)

How, when and to whom the complainant disclosed the alleged assault

[25]

There
    was different testimony regarding when and how the complainant disclosed the
    assault. The complainant said she first disclosed the assault to a different
    sister (one who did not testify) and to their mother about a month or two
    months after the incident. The sister who testified said the complainant
    disclosed the assault to her within a week after the incident occurred. The
    mothers evidence was that she knew nothing of the alleged assault until after
    her daughter disclosed to the guidance counsellor in 2016, about four years after
    the alleged incident.

[26]

C.H.
    initially said the sister who testified encouraged her to tell her mom. Later,
    she said that she did not speak to this sister before disclosing the incident
    to her mother. On the other hand, the sister testified that she was sure that
    the complainant disclosed the allegation to her
before
she disclosed to her mother. It was during this conversation the sister warned
    the complainant that she should not lie about such serious matters.

[27]

The
    sister also testified that there had been a three-way telephone call between
    the complainant and her two sisters about the assault just after the
    complainant had disclosed to them. The sister said that in this three-way
    telephone call, they were just elaborating on everything and how [they] were
    going to tell mom. The complainant did not recall any such call having taken
    place.

(b)

The details of the alleged assault

[28]

With
    respect to the details of the alleged assault, the complainant testified at the
    preliminary inquiry that she saw the appellant go into the master bedroom
    across the hall from the guest bedroom, look through a dresser drawer, go into
    a bathroom, and then return to the guest room. At trial, in direct examination,
    C.H. testified she saw the appellant go into her mothers bedroom, enter the
    washroom in her mothers bedroom, and then leave the room, with no mention of
    rummaging through the dresser drawer. When C.H. spoke to police she made no
    mention of the appellant going to her mothers room at all to retrieve
    anything. C.H. claimed both versions of events were true and testified for the
    first time in cross examination at trial that the appellant went to both the
    dresser drawer and the washroom. Her mother testified that it would not have
    been possible to see the dresser from the guest bedroom. Her sister testified
    that the master bedroom was directly across the hall from the guest room, but
    the master bedrooms door itself was not directly across from the door to the
    guest room but was at an angle.

[29]

The
    trial judge did not address these inconsistencies, except to the extent that he
    stated that the sisters evidence about the location of the guest bedroom
    confirmed the complainants evidence. With respect to the timing of the
    disclosure to the sister (whether it was within a week or one or two months
    later), the trial judge referred to it as a discrepancy but did not address
    it further.

[30]

He
    did reject a few of the defences reasons for finding the complainant not
    credible. For example, there was evidence that the complainant had stolen a
    cell phone in 2015 from the pastor at their church. The trial judge stated that
    the complainants acknowledgment of her wrongdoing did not undermine her
    credibility. He also noted that the mother had inexplicably retained the cell
    phone instead of returning it to the rightful owner.

[31]

The
    trial judge also indicated that the complainant was frank and did not
    exaggerate her account of the events:

[The complainant] gave a candid
    account of what allegedly happened in the summer of 2012. She candidly admitted
    that she disliked [the appellant] because he carried untrue stories about her
    to [her mother.] She also admitted that she had attendance problems at school
    while she lived with her mother and after she left her mothers home. She did
    not appear to have embellished or exaggerated her account of what happened. Had
    she wished to demonize [the appellant] as much as possible, she would not have
    testified that he did not succeed in his attempts to penetrate her.
    Significantly, when the interviewing officer asked her what she thought should
    happen to [the appellant], she replied that the police should caution him. She
    made no mention of wanting to have him charged and/or imprisoned.

[32]

As
    the examples above illustrate, however, the trial judge did not grapple with
    the inconsistencies in and as between the testimony of the complainant and her
    sister. These were material here, both because there were a number of them, and
    also because the only issue in the case was that of credibility.

[33]

Some
    of the inconsistencies were more significant than others. For example, the
    differences about when the complainant told her sisters may not have been very
    significant, given that the complainant was only about 10 years old at the time
    of the incident. Another discrepancy, however, was whether there was a
    three-way conversation between the sisters after the complainants initial
    disclosure to them. The sister who testified clearly recalled a three-way
    conversation while the complainant did not. Although it would have been open to
    the trial judge to assess this inconsistency as not serious, it is arguably
    more significant than the timing of the disclosure because one might expect
    that even a 10-year-old would remember the fact that such an important
    conversation (in which the sisters strongly encouraged her to disclose) took
    place.

[34]

In
    my view, the most significant inconsistency is between the complainant and her
    sister as to whether the complainant had disclosed to her mother before
    disclosing to the sister who testified. Even if the previously mentioned
    inconsistencies may be given latitude because of the complainants age, it seems
    harder to resolve this inconsistency. There was evidence that the complainants
    relationship with her mother was fraught and she was scared to tell her mother.
    In my view, it is surprising that the complainant would not remember a conversation
    with her sister who told her the allegations would have serious consequences if
    she was lying and would not remember whether she disclosed to her mother before
    disclosing to the sister who testified.

[35]

In
    summary, it was open to the trial judge to resolve these and other inconsistencies
    raised by the defence. Had he explicitly done so, his conclusions would have
    attracted significant deference from this court. In this case, however, there
    was an absence of scrutiny or resolution of these inconsistencies, as well as a
    failure to explain why he did not consider them to be material.

(3)

Use of the complainants prior consistent statement

[36]

The
    sister testified that when the complainant disclosed the incident to her, the
    complainant was very emotional. The sister said that she had warned the
    complainant that this was a very serious allegation and that she should stop if
    it was not true, but the complainant insisted it was true.

[37]

When
    dealing with this testimony, the trial judge began by citing this court in
R.
    v. G.C.
, 2006 CanLII 18984 (Ont. C.A.), at para. 20:

[E]vidence of prior complaint
    cannot be used as a form of corroboration to prove that the incident in fact
    occurred. It cannot be used as evidence of the truth of its contents. However,
    the evidence can be supportive of the central allegation in the sense of
    creating a logical framework for its presentation  and can be used in
    assessing the truthfulness of the complainant.

[38]

The
    trial judge continued:

In
R. v. Khan
, [2017 ONCA 114, 136 O.R. (3d) 530,
    leave to appeal refused [2017] S.C.C.A. No. 139], the Court of Appeal noted at
    para. 41 that such evidence cannot be used for the prohibited inference that
    consistency enhances credibility, or the incorrect conclusion that the simple
    making of a prior consistent statement corroborated in-court testimony.

Based on these principles, I cannot use [the sisters] testimony
    as confirmative or corroborative of the account of [the complainant.] However,
    her evidence can be used, as the court noted in
G.C.
, to assess the
    truthfulness of the complainant: see
R. v. Nyznik
, 2017 ONSC 4392, at
    para. 198.

In that regard, there are two
    aspects of [the sister]s testimony that can be used to assess [the
    complainant]s credibility and the reliability of her testimony. First, [the
    sister] testified that [the complainant] was very emotional when she described
    what had allegedly happened. Second, [the sister] gave uncontradicted evidence
    that she warned [the complainant] that the allegations she was levelling
    against [the appellant] were very serious and that if she was lying, she should
    stop it immediately. Despite this warning, [the complainant] did not retract
    her statement about being sexually assaulted by [the appellant.]

[39]

The
    appellant argues that the trial judge improperly used the complainants prior
    consistent statements. I agree.

[40]

Here,
    as I have mentioned, the central purpose in calling the sister as a witness was
    to rebut the defence of recent fabrication. The trial judge found that the sisters
    statement supported the complainants credibility, because the complainant had
    stuck to her story despite the sisters cautions about lying. This use of C.H.s
    prior consistent statement went well beyond rebutting the defence of recent
    fabrication. In essence, the trial judge concluded that the fact that the
    complainant continued to make the same statements, despite the cautions of her
    sister, reflected positively on her credibility. I do not see how that is different
    from relying on the assertion that any statement that is repeated is more
    likely to be true  the very inference prohibited by the rule against prior
    consistent statements. Nor do I understand the logic of the trial judges
    finding that C.H. was credible and reliable because C.H. did not retract her
    story when she was warned by her sister that there would be consequences if she
    was lying. The trial judges reasons are silent on this point. The fact that
    C.H. did not retract her allegation was not a positive factor that enhanced the
    credibility of the complainant.

[41]

This
    case is very different from
Khan
. In that case, the complainants
    prior consistent statement was spontaneous. As this court stated in
Khan
,
    the fact of the statement, as well as its timing and spontaneity, could be used
    for a limited purpose, to [assess] the truthfulness of the complainants
    in-court testimony:
Khan
,
at para. 43. The statement in this case was not spontaneous. On the sisters
    evidence, the complainant disclosed the allegation to her a week after it had
    happened. The statement was also not admitted under the narrative as
    circumstantial evidence exception, nor did the statement have similar
indicia
that could be used to assess the complainants truthfulness in court.

[42]

This
    error compounds the problems outlined above, namely the failure to resolve the
    inconsistencies in the evidence and the motive to fabricate. This error was particularly
    important in this case where the evidence raised a clear motive to fabricate.
    There was also no dispute that C.H. disliked the appellant and believed he was
    always trying to get her in trouble with her mother. This had been the case,
    according to all of the evidence, since well before the alleged incident.

(4)

W.(D.)

[43]

The
    principles of
W.(D.)
are well known but are worth repeating:

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.

[44]

There
    is no dispute that these principles apply not only to cases where the accused
    testifies, but also to cases where there is other defence evidence called
    contradicting the Crowns case and/or conflicting evidence favourable to the
    defence in the Crowns case:
R. v. B.D.
, 2011 ONCA 51, 226 C.C.C.
    (3d) 197, at para. 105. Trial judges do not need to rigidly recite the three
    steps in the
W.(D.)
instruction. It is not a magical incantation. Rather,
    as Molloy J. summarized in
R. v. Nyznik
, 2017 ONSC 4392, 350 C.C.C.
    (3d) 335, at para. 14:

What is critical is for the judge
    to avoid turning the fact-finding exercise into a choice as to which is the
    more credible version of the events. This cannot be a credibility contest, with
    a conviction if the complainant wins the contest and an acquittal if the
    defendant does.

[45]

The
    appellant argues that the trial judge in this case did not refer to and did not
    apply the principles in
W.(D.)
. In particular, he argues the trial
    judge did not consider whether the mothers evidence raised a reasonable doubt,
    despite the fact that he did not find her to be credible. The Crown responds
    that it is implicit in the trial judges reasons that he did not accept the
    defence evidence and he was satisfied that it did not raise a reasonable doubt.
    Though the trial judge did not specifically mention
W.(D.)
, trial
    judges are presumed to know the law.

[46]

In
    my view, this is a case in which the defence evidence, seen in the context of
    all the evidence, could have raised a reasonable doubt, despite the fact that
    the trial judge rejected it. Much of the mothers evidence, particularly that
    which related to C.H.s behavioural issues, the conflict between the
    complainant and the appellant, and the existence of a motive to fabricate, was
    consistent with other evidence heard at the trial. In these circumstances, the
    trial judge was obliged to expressly consider whether the defence evidence
    raised a reasonable doubt. The reasons do not show that he did so.

[47]

This
    is compounded by a related problem. The trial judge found the mother was not
    credible. He referred in particular to the mothers evidence that she had not
    known about the sexual assault allegation before the complainant disclosed it to
    the guidance counsellor in January 2016 and that, had she known, she would have
    called the police. The trial judge cited the sisters evidence that the mother
    had been told well before 2016 as a reason for not believing the mothers
    testimony that she would have called the police had she known.

[48]

The
    sisters evidence on this point was not put to the mother and so she did not
    have a chance to explain or respond. The trial judges reasons do not indicate
    that he appreciated that the sisters evidence on this point was never put to
    the mother. The use of this evidence to reject the only defence evidence thus undermines
    the trial judges finding that the mother was not credible.

E.

Disposition

[49]

The
    trial judge in this case fell into a number of related and overlapping errors
    related to the assessment of credibility. While any one of these errors on its
    own might not have warranted a new trial, viewed as a whole, the guilty verdict
    cannot stand. I would therefore allow the conviction appeal, set aside the
    conviction, and order a new trial.

[50]

Given
    this disposition, it will not be necessary to consider the sentence appeal.

Released: October 9, 2020

DW

A. Harvison Young J.A.

I agree David Watt J.A.

I agree S. Coroza J.A.


