



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Rose, 2021 ONCA 408

DATE: 20210611

DOCKET: C66594

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Rose

Appellant

K.Y. Tina Yuen, for the appellant

Avene Derwa, for the respondent

Heard: December 11, 2020 by video conference

On appeal from the conviction entered on August 29, 2018 by
    Justice David L. Corbett of the Superior Court of Justice.

Jamal J.A.:

OVERVIEW

[1]

The appellant, Alexander Rose, appeals his conviction of sexual assault.
    The only issue
at trial
was consent. The
    appellant testified that his sexual encounter with the complainant was
    consensual, while the complainant testified that the appellant forced himself
    upon her. The case turned on credibility.

[2]

The trial judge determined that he simply did not believe a word of
    what [the appellant] had to say where it differed from the complainants
    version of events. He also concluded that the complainants version of events
    was probably true and that probably the events happened as she described
    them. But he highlighted certain issues with her evidence that led him to
    conclude it would be unsafe to base a conviction on her evidence alone.

[3]

Even so, the
trial judge was convinced
    of the appellants guilt based on the complainants post-event demeanour as
    seen in about 30 minutes of video surveillance footage from the appellants
    condo building. The video footage showed the complainant in a highly distraught
    emotional condition just after the alleged assault. The trial judge found this post-event
    demeanour evidence powerfully corroborative of the complainants evidence. He
    ruled that the corroboration provided by the video surveillance evidence [was]
    more than enough to satisfy [him] beyond a reasonable doubt of the truth of the
    complainants account of events.

[4]

The appellant now appeals his conviction. He asserts that the trial
    judge erred in evaluating the complainants post-event demeanour, rendered an
    unreasonable verdict, and improperly assessed the evidence.
For the reasons that
follow, I would dismiss the
    appeal.

BACKGROUND FACTS

[5]

The facts were largely uncontested, except on the key issue of consent.

[6]

In May 2016, the appellant, then aged 22, and the complainant, then aged
    20, met at Yorkdale Mall in Toronto. The appellant was shopping with his friend
    Jordan for Jordans birthday. Jordan noticed the complainant in one of the
    stores and asked for her opinion on some shoes. The complainant then went shoe
    shopping with Jordan and the appellant. Before they parted, Jordan asked the
    complainant for her phone number and she gave it to him.

[7]

The complainant and Jordan texted each other over the next few days. A week
    later, the complainant invited Jordan to her place where they had consensual
    sex. Jordan then went to the airport to catch a flight to the Dominican Republic.
    When he returned a week later, he and the complainant arranged a date. They were
    to meet in Jordans area and would then go to a restaurant or bar.

[8]

On the evening of May 15, 2016, the complainant arrived at what she
    thought was Jordans condo building (it was actually the appellants condo).
    She was recorded on the condo buildings video surveillance camera as she
    waited for about 10 minutes in the downstairs lobby for Jordan to come down. When
    Jordan came down, he told her he had forgotten something, so they went upstairs
    to get it. The appellant was in the condo. He gave the complainant a rum and
    coke while Jordan went to the bedroom to get what he had forgotten. When Jordan
    returned, the three
of them
chatted and
    watched television. A few minutes later, Jordan and the complainant went to the
    bedroom and had consensual sex.

[9]

Jordan, who was naked, then left the bedroom and the appellant came in
    to look for something. The complainant was sitting on the bed, partially
    undressed with her chest exposed. The appellant then left and Jordan returned,
    still naked. The complainant said this happened a few times. She found this
    strange and told them it was weird. She testified that, after Jordan left
    again, the appellant approached her on the bed. The appellant complimented her
    breasts and told her he wanted to see them, to which she said, No. He then tried
    to reach down the top of her dress. She told him to stop and pushed his hand
    away. The complainant testified that at this point the appellant was effectively
    blocking her from getting up or going around him.

[10]

According
    to the complainant, the appellant remarked that she was shy and asked whether another
    drink would make her less shy. She said she guessed so. The appellant left the
    room to get more rum, returned, and refilled her drink. He then said, Show me
    your dome skills, a request for oral sex. She said no. The appellant then left
    the room again, returned with a condom, and put it on. He got on top of her and
    told her to Relax. Relax, and then said, Whats the big deal? You have two
    good looking guys here. She told him, No. Like stop. She tried to kick him
    off. But he held her hands down and penetrated her vagina. He asked her to turn
    around but she said [n]o. When her hands freed, she pushed him off her, and
    he left the room.

[11]

The complainant
    testified that Jordan then returned to the bedroom and told the complainant
that
she had just had a threesome. She felt insulted
but said nothing
. The appellant and Jordan
    then announced that they were going to a nightclub but did not invite the
    complainant. She got dressed and the three
of them
left
    the condo together. All three were videotaped by the condo video surveillance camera
    in the elevator as they went down. The complainant said goodbye to Jordan and
    gave him a hug. She did not say goodbye to the appellant. When they got
    downstairs, Jordan and the appellant showed the complainant the way to the
    lobby before going to the parking garage for their night out. The complainant then
    called an Uber, which arrived about 30 minutes later and took her home. The
    complainant was recorded by the condo video surveillance camera as she waited
    for the Uber in the lobby.

[12]

As the
    complainant waited in the lobby, she called her ex-boyfriend, J.F., but did not
    reach him. She also called two close friends, one of whom later testified that
    the complainant called him and told him
that
she
    had been raped by her dates friend. That friend testified that the complainant
    sounded distraught and was crying throughout the roughly 30-minute conversation.

[13]

The
    complainant texted J.F., who also testified
at trial,
and asked him if he would defend her if someone tried to hurt her. The
    complainant and J.F. met and spoke about what the complainant alleged had happened.
    J.F. called the appellant and Jordan and spoke to them on speakerphone, in the
    complainants presence, accusing them of rape. J.F. testified that one person on
    the call was arrogant and laughing the whole thing off, while the other person was
    not and apologized. J.F. later had another call with the person who had apologized,
    who now claimed that he was innocent. Later the same day, the complainant went
    to a police station and made a police report against the appellant.

[14]

The
    appellant testified in his own defence but Jordan did not testify. The
    appellant claimed that the sex was consensual. He said that after Jordan left
    the room, he went to check on the complainant because she was a guest in his
    home and asked her if she wanted another drink. She said yes, so he went to get
    more rum. He said he returned, engaged in small talk with her, and leaned in to
    kiss her. He claimed she moaned and then moved back onto the bed. After a
    couple of minutes of touching and kissing, the appellant left to get a condom,
    returned, and engaged in what he asserted was consensual sex. He testified that
    the complainants body language was receptive throughout and that she never
    protested or told him to stop. The three then left the apartment and parted
    ways. The appellant and Jordan did not invite the complainant to the club with
    them and she said nothing about going with them.

THE TRIAL DECISION

[15]

The
    trial judge did not believe the appellants testimony. He described the
    appellants testimony as glib, often terse and said it failed utterly to
    convince [him] that he was providing a full and accurate account of what
    happened. He said he simply did not believe a word of what [the appellant]
    had to say where it differed from the complainants version of events.

[16]

The trial
    judge further stated that although he had concluded that the complainants
    evidence was probably true and probably the events happened as she described
    them, there were issues with parts of her evidence that were numerous and
    serious enough that it would be unsafe to base a conviction on her evidence
    alone. The trial judge highlighted
the following
:
    (1) the complainant lied to the police in her initial interview about not
    sleeping with Jordan when he came over to her place, in the trial judges view because
    she may have been embarrassed or uncomfortable talking to an older male officer,
    though she later went back to the police to tell the truth; (2) the complainant
    lied at the preliminary inquiry about the telephone call between J.F. and the
    appellant and Jordan by saying that J.F. had told her about the call, when she was
    actually present with J.F. on speakerphone during the call; (3) the trial judge
    found the complainant was trying to enlist J.F. to exact justice on her
    behalf, rather than going to the police, an explanation that the trial judge
    accepted. He found this did not run against her credibility but made it more
    likely that she was telling the truth about what happened in the condo; and (4)
    the complainant testified that she was holding her drink during the sexual
    assault, which the trial judge found improbable. The trial judge found
that the appellant took the drink from her
when he forced
    himself on her. The trial judge noted that this
sort
    of
confusion in the precise sequence of events is not unusual for
    shocking events that happen quickly.

[17]

Despite
    these concerns, the trial judge declared
that
he
    still believe[d] the complainant and that he still believe[d] that matters
    unfolded as she described. He found she had no reason to lie about the
    assault. He rejected the defence theory
that
she
    had a motive to fabricate because Jordan and the appellant did not take her out
    to a club. He found her to be emotionally resilient and not so heavily
    invested in Jordan
that
she would find her
    world shattered by his being rude to her or insensitive at the end of an
    evening.

[18]

The trial
    judge also found the condo video footage powerfully corroborative of the
    complainants evidence. He found the corroboration provided by the video
    surveillance evidence [was] more than enough to satisfy [him] beyond a
    reasonable doubt of the truth of the complainants account of events. The footage
    covered three time periods: (1) the complainant waiting in the lobby for about
    10 minutes as she arrived to see Jordan at the beginning of the evening; (2) the
    complainant, the appellant, and Jordan in the elevator as they left the condo
    after the alleged assault; and (3) the complainant as she waited in the lobby area
    for about 30 minutes after the alleged assault, during which she can be seen crying.

[19]

Applying
    the analysis in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, the trial judge concluded
    that: (1) he did not believe the appellants evidence; (2) the appellants
    evidence did not leave him with a reasonable doubt as to the appellants guilt;
    and (3) the complainants evidence, combined with the video evidence, satisfied
    him of the appellants guilt beyond a reasonable doubt.

ISSUES

[20]

The
    appellant raises three issues:

1.

Did the trial judge err in evaluating the complainants post-event demeanour
    as recorded on the video footage?

2.

Did the trial judge render an unreasonable verdict?

3.

Did the trial judge improperly assess the evidence?

DISCUSSION

Issue #1: Did
    the trial judge err in evaluating the complainants post-event demeanour as
    recorded on the video footage?

[21]

The
    appellants first and principal ground of appeal asserts that the trial judge
    erred in evaluating the complainants post-event demeanour as recorded on the
    video footage.
At trial and
before this court,
    both parties agreed that the video footage  which contained no sound  was
    admissible. It was entered into evidence on consent, although each side asked
    the trial judge to draw different inferences from it. The Crown argued that the
    video evidence corroborated the complainants testimony, while the defence
    urged the alternative inference that the complainant was upset because she regretted
    having consensual sex with both men and felt massively disrespected by being left
    to go home alone.

[22]

Evidence
    of the post-event demeanour of a sexual assault complainant can be used as
    circumstantial evidence to corroborate the complainants version of events:
R.
    v. J.A.A.
, 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41,
per
Rothstein
    J. (dissenting, but not on this point);
R. v. Steele
, 2021 ONCA 186,
    154 O.R. (3d) 721, at paras. 54, 94,
per
van Rensburg J.A.
    (concurring); and
R. v. Mugabo
, 2017 ONCA 323, 348 C.C.C. (3d) 265, at
    para. 25. Such post-event demeanour evidence can be invoked by either side: it can
    assist the defence in raising a reasonable doubt on
the
    issue of
consent, or it can assist the Crown in proving non-consent:
Steele
,
    at para. 54; see also Lisa Dufraimont, Myth, Inference and Evidence in Sexual
    Assault Trials (2019) 44:2 Queens L.J. 316, at pp. 328-29.

[23]

In
Murphy
    v. The Queen
, [1977] 2 S.C.R. 603, at pp. 612, Spence J. writing for the
    majority and the unanimous court on this point, explained how post-event
    demeanour evidence can assist the prosecution:

Independent testimony of a rape complainants emotional condition
    is capable at law of corroboration where it is sufficiently damning that it may
    be considered by a jury to be more consistent with her denial of consent than
    with
the existence of
consent, or,
to put it another way,
where a reasonable inference
    can be drawn by a jury, considering all the circumstances,
that
there is a causal relationship between the
    assault and the complainants distraught emotional condition.

[24]

The
    appellant does not challenge these principles but asserts that the trial judge
    erred in applying them. He claims that the trial judge erred: (1) by making findings
    about the complainants post-event emotional state unsupported by the video
    footage and contradicted by the complainants testimony; and (2)
in rejecting an alternative, innocent explanation for the
    complainants post-event demeanour.

[25]

I do
    not accept the appellants submissions. Although I agree with the appellant
    that some of the trial judges characterizations of the complainants demeanour
    on the video are exaggerated, he was entitled to find that the video footage corroborated
    the complainants denial of consent and was not reasonably consistent with
the existence of
consent.

[26]

The
trial judges core conclusions about the
    complainants post-event emotional state are supported by the video footage and
    are not contradicted by the complainants testimony. The trial judge found that
    the video footage of the complainant in the lobby waiting for the Uber shows a
    woman in a very different emotional state than the woman who entered the
    condominium some 90 minutes or so before. That central finding is
    unassailable. As the trial judge found, when the complainant arrived she appeared
    poised, confident and was running her fingers through her hair. She was
    laughing occasionally while she [was] talking on the phone. She was smiling
    and her body posture [was] relaxed. She was swinging her arms in a rather
    carefree manner. But 90 minutes later, after the alleged sexual assault, she was
    crying pretty much throughout the time of the video. Although there is no
    audio, it is obvious, as the trial judge found, that she was wiping the tears
    away from her face virtually throughout the entire time she [was] in the lobby.
    She [was] obviously very, very upset. As the trial judge also found: I see a
    video of an extremely distraught young woman who is crying copiously and is
    very, very upset. I see no basis to interfere with these core conclusions.

[27]

Even so,
I agree with the appellant that the trial
    judge went too far when he described the complainant as close to being
    emotionally shattered by what ha[d] just happened to her, very defensive, and
    on the verge of losing her self control. In my view, the video footage does not
    justify this characterization of the complainants inner emotional state. This rhetorical
    flourish, however, does not undercut the trial judges core conclusions set out
    above. As
a majority of the
Supreme Court of
    Canada recently underscored in
R. v. G.F.
, 2021 SCC 20, at para. 76, a
    trial judges reasons, particularly in sexual assault cases, must be reviewed
    functionally and contextually rather than in a search for error. Trial
    decisions must not be overturned on the basis of parsing imperfect or summary
    expression on the part of the trial judge, particularly on issues of
    credibility: at para. 76. Thus, while I would find the trial judge went too far
    in his characterization of the video footage, that does not justify setting
    aside his core conclusions.

[28]

Nor
    are the trial judges core conclusions undercut by his conjecture that the
    complainants demeanour in the elevator  where she was huddled in the corner
    and hugged Jordan on the way out but ignored the appellants hand as he reached
    out to her  suggested that she was still hoping that [Jordan] was a person that
    she might be able to have some continued relation with. The trial judge
    appears to have ignored his own salutary caution, expressed a few lines
    earlier, that one cannot read too much into something like that, it is a very
    short clip.

[29]

I
    also disagree with the appellants claim that the trial judges findings of the
    complainants emotional state are contradicted by her own testimony. The complainant
    rejected defence counsels suggestion that, at one point in the video, she was
    in a squatting position in the lobby because she was standing in high heels and
    getting tired. Instead, she testified that it was because she was sad. The
    appellant says that the complainant described herself as being only sad, a
    far cry from being (in the trial judges words) close to being emotionally
    shattered by what has just happened to her. But the trial judges use of much
    more expressive language than the complainant does not detract from his
    essential point  that the complainants emotional state in the video corroborated
    her testimony that the sex was not consensual.

[30]

Finally,
    I do not accept that the trial judge erred in rejecting an alternative,
    innocent explanation for the complainants post-event demeanour. The appellant
    argued that the complainant was upset when she realized that the date with
    Jordan was a pretext to get her to the condo to have sex with both men, that the
    men considered her (as defence counsel at trial, who was not appeal counsel, put
    it) sex worthy, but  not club worthy, and that she was upset about Jordans
    comment
that
she had just been in a threesome.
    The trial judge considered and rejected this defence theory for the
    complainants post-event demeanour. As he explained:

[Counsel for the appellant], in his very able argument, put it
to me
that the complainant had been treated
very
shabbily by [Jordan] and [the appellant]. She
    had been invited over for a night out and instead, as soon as the two men had
    had sex and got what they wanted from her, they just dumped her at the doorstep
    to take her own Uber home and went off to have a night out on their own.
If I was to accept
that version of facts, that the
    leaving of the complainant at the front door was a callous disregard for her as
    a
human being
and treating her as just an
    object for sexual gratification, who was not wanted the moment the men got what
    they wanted,
if I were to accept
that, I still
    would find that motivation to not explain the distraught emotional state in
    which I see the complainant in the lobby of the building. Nor would it explain
    false allegations of sexual misconduct against [the appellant] or
anyone for that matter
. Nor would it explain the
    curious decision to make the allegation against [the appellant] but not against
    [Jordan], if that was a false allegation.

[31]

The
    trial judges other findings supported this conclusion. He accepted the complainants
    evidence
that
she was at first unsure of
    Jordans role in what had taken place in the condo and only realized that
    Jordan was in on it  in the sense of inviting her to the apartment for a
    threesome  over the next day or two.
[1]
I see no basis to interfere with any of these conclusions.

[32]

I also
    reject the appellants claim that the trial judge convicted the appellant based
    solely on the post-event demeanour evidence. The trial judges reasons were
    clear that he
completely
rejected the appellants
    evidence. He also stated that he believed the complainants evidence
that
the appellant had sexually assaulted her. However,
    given the high standard of proof required for a criminal conviction, the trial
    judge fairly noted that he would have had reservations convicting the appellant
    without the video evidence. I see no error in the trial judges reasoning
    process or conclusion.

[33]

I
    therefore conclude that the trial judge did not err in evaluating the
    complainants post-event demeanour as recorded on the video footage. He
was entitled to conclude
that the video footage corroborated
    the complainants denial of consent and was not reasonably consistent with
the existence of
consent. He
was also entitled to infer
a causal relationship between the
    sexual assault and the complainants distraught emotional state reflected in
    the video footage.

Issue #2: Did the trial judge render an unreasonable verdict?

[34]

The
    appellants second ground of appeal asserts that the trial judges verdict was unreasonable.

[35]

A verdict
    is unreasonable if: (1) it is not one that a properly instructed jury or judge,
    acting judicially, could have reasonably rendered; or (2) the trial judge drew
    an inference or made a finding of fact essential to the verdict that (a) is
plainly
contradicted by the evidence that the trial
    judge relied on in support of that finding or inference, or (b) is incompatible
    with evidence not otherwise contradicted or rejected by the trial judge:
R.
    v. C.P.
, 2021 SCC 19, at paras. 28-29;
R. v. R.P.
, 2012 SCC 22,
    [2012] 1 S.C.R. 746, at para. 9.

[36]

When
    determining whether the verdict was reasonable, an appellate court cannot
    interfere with the trial judges assessments of credibility unless it is
    established
that
those assessments cannot be
    supported on any reasonable view of the evidence:
C.P.
, at para. 30;
R.P.
,
    at para. 10.

[37]

Here,
    the appellant asserts that the trial judges verdict is unreasonable because the
    complainants narrative had such fundamental contradictions
that
it rendered her version of events impossible.
    He notes the complainant testified that she was physically held down as she was
    assaulted and that she struggled and kicked
in an
    attempt
to escape  which suggested she understood
at the time that she
was being assaulted  yet she
    also testified that it was only later, when she was in the lobby waiting for
    the Uber, that she
began to process
what had
    happened to her. The appellant also notes
that
there
was an alternative, innocent explanation for
the
    complainants post-event demeanour that could not be excluded.

[38]

I do
    not accept the appellants submissions. Although the trial judge fairly
    acknowledged
that
there were problems with
    aspects of the complainants evidence, he found those problems did not go to
    the core of her account of forced, non-consensual sex. The complainant was
    unequivocal that she did not consent to the sexual activity with the appellant.
    The trial judge determined that her post-event demeanour or emotional state, as
    recorded on the video, corroborated her account. In these circumstances, in my
    view, the verdict cannot be said to have been unreasonable.

[39]

Nor is
    there any contradiction in the complainants testimony that, on the one hand,
    she resisted the appellant, and
, on the other hand,
that
    she only processed what had happened to her later, when she was downstairs in
    the lobby. The events recounted by the complainant happened quickly. She
    testified that she was in shock when she was sexually assaulted and was
    trying to process what had happened to her. That she fought back during the
    assault does not mean
that
she had
fully
processed or comprehended what had just
    happened to her. The appellants argument presumes that resisting during a
    sexual assault is incompatible with not
fully
understanding
    the nature of the assault until later. Yet both the Supreme Court of Canada and
    this court have repeatedly cautioned that there is no inviolable rule on how
    people who are the victims of trauma like a sexual assault will behave:
R.
    v. D.D.
, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65;
R. v.
    Lacombe
, 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. There is
    similarly no inviolable rule on how a sexual assault complainant will process a
    traumatic event. I see nothing incompatible with resisting during a sexual
    assault, being in a state of shock, and only
fully
processing
    the assault somewhat later.

[40]

The trial
    judge
was also entitled to reject
the
    appellants alternative explanation for the complainants post-event demeanour,
for the reasons
already noted above.

[41]

To
    conclude, I do not accept that the trial judges verdict was unreasonable. Even
    accepting that the trial judges description of the video was exaggerated or involved
    speculation in places, this does not undercut his core finding
that
the complainant did not consent to sex with the
    appellant.

Issue #3: Did the trial judge improperly assess the evidence?

[42]

Finally,
    the appellant raised several arguments in his factum that he did not pursue in
    oral argument, alleging that the trial judge improperly assessed the evidence. The
    appellant claims that the trial judge: (1) engaged in stereotypical reasoning as
    to why the complainant did not leave the room when the appellant first made advances
    towards her, as reflected in the trial judges comment that part of being a
    young woman in todays age is rebuffing unwanted sexual advances; (2) speculated
    that the complainant lied in her police statement
that
she did not have sex with Jordan the second time she met him because she
    was embarrassed; (3) addressed the complainants credibility but failed to analyze
    her reliability; and (4) engaged in uneven scrutiny of the evidence of the
    appellant and complainant.

[43]

I
    see no merit in these arguments. They essentially invite this court to second-guess
    the trial judges credibility findings based on a paper record and to
    circumvent the appellate deference owed to those findings. As
a majority of the
Supreme Court recently underscored
    in
G.F.
, at para. 81, a trial judges findings of credibility deserve
    particular deference, because in our system of justice the trial judge is the
    fact finder and has the benefit of the intangible impact of conducting the
    trial. The majority in
G.F.
emphasized, once again, that [c]redibility
    findings are the province of the trial judge and attract significant deference
    on appeal (citations omitted): at para. 99. Here
, in
    my view,
the trial judge complied with his obligation to [strive] to
    explain why [the] complainant [was] found to be credible, or why the [appellant
    was] found not to be credible, or why the evidence [did] not raise a reasonable
    doubt: at para. 81. I therefore see no basis to intervene.

[44]

Nor
    is there any merit in the appellants argument that the trial judge failed to
    assess the complainants reliability. The majority in
G.F.
emphasized
    that [a] trial judges determination to accept or believe inculpatory witness
    evidence includes an implicit assessment of truthfulness or sincerity and
    accuracy or reliability (citation omitted): at para. 82. The majority concluded
    that, provided trial judges consider the
relevant
considerations
    bearing on credibility and reliability, there is no requirement that they
    utter the word reliable: at para. 82. Here, even though the trial judge did
    not specifically refer to the reliability of the complainants evidence, he carefully
    scrutinized both the appellants evidence and the complainants inculpatory
    evidence, as corroborated by the video evidence, including the truthfulness and
    accuracy of both. I see no basis for this court to intervene.

CONCLUSION

[45]

Despite
    Ms. Yuens excellent submissions, I would dismiss the appeal.

Released: June 11, 2021 R.G.J.

M. Jamal J.A.

I agree. R.G.
    Juriansz J.A.

I agree. Coroza J.A.





[1]

The trial judge found that Jordan understood that [the
    appellant] had just had sex with the complainant in the bedroom, but did not
    understand that the sex was without consent.


