



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. W.O., 2020 ONCA 392

DATE: 20200617

DOCKET: C64887

Hoy A.C.J.O., Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.O.

Appellant

R. Craig Bottomley, for the appellant

Tanya Kranjc, for the respondent

Heard: March 12, 2020

On appeal from the convictions entered by
    Justice Stephen T. Bale of the Superior Court of Justice on September 29, 2017.

Hoy A.C.J.O.:

[1]

The appellant was found guilty of sexual assault, incest, and
    sexual interference. The conviction for sexual assault was conditionally stayed,
    presumably based on the principle in
Kienapple v. R.
,
    [1975] 1 S.C.R. 729. The appellant was sentenced to seven years imprisonment.

[2]

The complainant is his daughter. She testified that the appellant
    sexually assaulted her multiple times  beginning with touching and progressing
    to intercourse  during her access visits with him every other weekend over approximately
    a 10-month period beginning in February 2012. In this period, she was twelve
    and thirteen years of age. She also testified that the sexual assaults occurred
    in the basement of her paternal grandmothers house, at her fathers trailer,
    and on a trip to Niagara Falls.

[3]

The appellant did not testify at trial. The principal issue at trial was
    the credibility of the complainant, who was seventeen years of age at the time
    of trial.

[4]

In his closing submissions at trial, the appellants trial counsel
    indicated he would confine his submissions to three major areas: the disclosure
    first made at trial that sexual assault also occurred during the trip to
    Niagara Falls; the evidence of the complainant about scars on her chest arising
    from an assault; and an email that the complainant sent to the appellant dated
    May 4, 2013, which he argued raises a reasonable doubt about the complainants
    motivation. He also addressed what he characterized as a minor point, arising
    out of the evidence of the complainant and her mother that the appellant sent
    the complainant inappropriate text messages.

[5]

In his reasons, the trial judge addressed the three major areas raised
    by the appellants trial counsel. Despite the inconsistencies in the
    complainants evidence, he found her to be credible and reliable and was
    satisfied beyond a reasonable doubt of the appellants guilt.

[6]

The appellant argues that in addressing the three major areas, the
    trial judge over-extended or improperly relied on the principles from
R. v. D.D.,
2000
    SCC 43,
[2000] 2 S.C.R. 275, and
R. v. D.P.
,
    2017 ONCA 263, leave to appeal refused, [2017] S.C.C.A. No. 261
,
and
    in light of this error, side-stepped the inconsistencies in that evidence and
    failed to provide sufficient reasons for how he resolved them.

[7]

The appellant also argues that the trial judge failed to address both the
    fourth, minor point raised by the appellants trial counsel in his closing
    submissions and the defence argument that the complainant had a motive to
    fabricate to thwart the appellants custody proceeding. The appellant argues
    that the trial judges failure to do so renders his reasons insufficient.

[8]

I reject these arguments.

[9]

I begin by briefly setting out the law relevant to these two
    arguments. Guided by those legal principles, I then address each area of
    evidence raised by the appellant in turn.

A.

LEGAL PRINCIPLES

(1)

D.D.
and
D.P.

[10]

In
D.D.
, at para. 63, the Supreme Court made clear that the
    significance of a complainants failure to make a timely complaint must not be
    the subject of any presumptive inference based upon stereotypical assumptions
    about how persons, particularly children, react to sexual abuse.

[11]

In
D.P.
, the complainant failed to disclose all the
    assaults in his first interview with the police. The trial judge in
D.P.
referred to
D.D.
and concluded that the complainants explanation for his failure to disclose
    all the assaults in his first interview was perfectly plausible. This court,
    at para. 30, quoted his observation that:

The decision to disclose is a difficult one that can be very
    painful for victims. It cannot be surprising that it would take [the
    complainant] more than one occasion to shed a burden that had been weighing on
    him for years.

[12]

This
    court found no error in the trial judges assessment of the complainants
    credibility. It rejected the argument that there is a fundamental difference
    between delayed disclosure and piecemeal disclosure of prior sexual abuse. It
    concluded, at para. 31, that [t]he comments in
R. v. D.D.
are potentially applicable to both,
depending of course
    on the circumstances revealed by the evidence in any particular case

    (emphasis added).

(2)

Insufficient reasons

[13]

Inadequacy
    of reasons does not provide a free-standing right of appeal. Rather, an
    appellant who argues insufficiency of reasons must show not only a deficiency
    in the reasons, but that the deficiency caused prejudice to the exercise of his
    or her right of appeal in a criminal case.

[14]

The
    question is whether the reasons provide the basis for meaningful appellate
    review of the correctness of the trial judges decision. Trial judges are not
    held to an abstract standard of perfection. In evaluating a trial judges
    reasons, appellate courts must consider the time constraints and general press
    of business in the criminal courts:
R. v. Sheppard
,
    2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 33, 53 and 55.

[15]

An
    appellate court must ask itself if the reasons, in their entire context,
    considered with the evidentiary record, the submissions of counsel and live
    issues at trial, explain the basis for the verdict. If so, the reasons are not
    deficient, regardless of any lack of detail or other shortcomings. A trial
    judge need not describe every consideration in assessing credibility or
    reconcile every frailty in the evidence:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 55-56.

[16]

In
    particular, where a case turns on credibility, the Supreme Court has emphasized
    that deference is in order and that intervention will be rare. There is no need
    to prove that the trial judge considered every piece of evidence, or every
    argument raised by counsel:
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788: at paras. 26, 30. However, a failure to
    articulate how issues of credibility were resolved can constitute a reversible
    error. An accused is entitled to know why the trial judge is left with no
    reasonable doubt, and appellate courts have a responsibility to review the
    record to ensure that the findings of fact are reasonably available:
R. v. Braich
, 2002 SCC 27, [2002] 1 S.C.R. 903, at para.
    23;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R.
    621, at paras. 20-21. See also

R. v. Vuradin
,
    2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 9-15.

B.

ANALYSIS

(1)

Where the
    assaults occurred

[17]

The
    complainant gave a statement to the police on September 16, 2013, after she
    first told her mother that she had been assaulted. In this statement, made to
    Detective Constable Dekoker, the following exchange occurred:

D/C Dekoker: And these times, the sexual intercourse part,
    that was at the trailer?

[Complainant]: (
nods head yes
)

D/C Dekoker: Did it happen -

[Complainant]: Yes.

D/C Dekoker: Any other place besides the trailer?

[Complainant]: Most of it was at the trailer. I think it was
    the odd weekend when we ended up going to his moms house, that it happened
    there.

D/C Dekoker: Okay, so 

[Complainant]: But Im pretty sure it was all at the trailer.

[18]

This
    statement was video-recorded and was adopted as evidence by the complainant
    during her examination-in-chief at trial, pursuant to s. 715.1 of the
Criminal Code
,
R.S.C., 1985, c. C-46.

[19]

During
    the complainants cross-examination, the appellants trial counsel asked her
    about a trip to Niagara Falls with her father in 2012 during the 10-month
    period when the complainant said the assaults occurred. To this point, there
    had been no mention of a trip to Niagara Falls. In response, the complainant
    testified that sexual intercourse with her father had also occurred on the trip
    to Niagara Falls.

[20]

The
    appellants trial counsel confronted her with why she did not tell Detective
    Dekoker about this in 2013:

Q. you told the officer everything that happened. Right?

A.  Yeah. I guess I left Niagara out. I didnt think it was
    relevant.

[]

Q.  So, you just forgot about the trip to Marineland  or
    pardon me  the trip to Niagara Falls when you gave the statement to the
    police?

A.   I guess so. I  I dont  I dont know.

[21]

In
    his closing submissions, the appellants trial counsel argued that the timing
    of the complainants disclosure of the Niagara Falls sexual assault suggested
    that she invented it in cross-examination: if the appellant were continuing to
    sexually assault her, as she alleged, it would have made no sense that he did
    not also do so in Niagara Falls, when just the two of them were in a hotel
    room. Accordingly, she made up that he also sexually assaulted her in Niagara
    Falls so that her story would be consistent. Further, her lack of detail about
    the sexual assault in Niagara Falls showed that the precision and quality of
    her memory [was not] sufficient to prove this case beyond a reasonable doubt.
    Finally, the appellants trial counsel argued that her testimony about the
    assaults in Niagara Falls contradicted her 2013 police statement in which she
    indicated that all the assaults occurred at her grandmothers house or in her
    fathers trailer, reproduced above.

[22]

In
    his reasons, the trial judge reviewed defence counsels arguments, specifically
    noting the complainants comment in her 2013 police statement that she was
    pretty sure it was all at the trailer. The trial judge explained why he
    concluded that this did not affect the complainants credibility:

Considering the reasons why victims of sexual assault often
    delay the disclosure of the assaults, or disclose them in a piecemeal way,
and the disclosure narrative referred to by Crown counsel
,
    I am unable to draw an adverse inference from the fact that the complainant did
    not mention the Niagara Falls allegations during the police interview: at p. 9.
    [Emphasis added.]

[23]

I am
    not persuaded that the trial judge erroneously over-extended the principles
    articulated in
D.D.
and
D.P.,
or that he provided
    insufficient reasons with respect to the complainants evidence about where the
    assaults occurred.

[24]

In
    this case, it is clear from the exchanges between Crown counsel and the trial
    judge and the trial judges review of defence counsels argument in his reasons
    that the trial judge grappled with the inconsistency between the complainants
    statement to Detective Dekoker and her evidence at trial. He did not rely on
D.D.
and
D.P.
to avoid
    engaging with the inconsistency. In rejecting the appellants trial counsels
    submission that the complainants evidence was not sufficiently credible or
    reliable to prove the offences beyond a reasonable doubt, the trial judge
    considered the circumstances revealed by the evidence  in particular, the
    circumstances about the disclosure narrative, which was referred to by Crown
    counsel at trial.

[25]

The
    evidence about the disclosure narrative included the following. The alleged
    sexual assaults commenced in February 2012, when the complainant was twelve
    years of age. The complainants evidence was that the appellant told her that
    she would be in big trouble if she told anyone and that she told no one about
    what had happened until ten months after the last incident.

[26]

In
    September of 2013, at the start of ninth grade, the complainants boyfriend of almost
    three months kept pushing her, prying because he  he knew something was
    really bothering me. So, I told him. That was on a Monday. He pushed her all
    week to see Guidance at school, but she didnt want to talk to a stranger about
    it. The boyfriend told his mother and, on the Friday, when the boyfriends
    mother came to the school to watch the boyfriends football practice, the
    boyfriends mother told the complainant that if the complainant did not tell
    her mother, she would do something about it. On Sunday, September 15, 2013, the
    complainant finally told her mother, who immediately took her to the police
    station.

[27]

The
    complainants evidence about this sequence of disclosure was corroborated by
    the complainants boyfriend and mother.

[28]

The
    complainant provided her statement to Detective Dekoker the following day, on
    September 16, 2013. A review of the video recording of that statement reveals
    how difficult it was for the complainant to discuss what had happened.

[29]

In
    the victim impact statement dated March 10, 2015, which the complainant wrote
    when she was fifteen, and which she adopted as true during her
    cross-examination at trial, she described how she felt in giving her statement:

I couldnt sleep that night, I was so scared. I had kept this
    hidden for two years now and had no idea how to explain to the cop what had
    happened. I was never good talking about personal things to anyone I was so
    worried that I wouldnt be able to get anything out. Luckily the detective was
    very nice and despite my fears I managed to open up.

[30]

In her
    closing submissions, the Crown highlighted what she described as the reluctant
    and slow disclosure by the complainant pointing to her incremental disclosure,
    first to her boyfriend, then her mother, not giving details, and her use of
    ambiguous language when speaking to the police. The Crown characterized the
    complainants addition of details and occurrences as a continuation of the
    progression of increasing level of comfort in talking about it as she matured
    and as she talked about it. Crown counsel at trial argued that this narrative
    of reluctant disclosure was consistent with an honest account and at odds with
    a motive to fabricate.

[31]

The
    trial judges conclusion that the comments in
D.D.
applied in this case was based on the circumstances revealed by the evidence,
    as
D.P.
permits. I see no error in the trial
    judges assessment of the impact of the complainants incremental disclosure on
    the complainants credibility. Read as a whole, the trial judges reasons show
    that he did not side-step the inconsistency regarding the Niagara Falls trip.
    Rather, he grappled with it and resolved it in a way that was not favourable to
    the appellant. Further, his reasons demonstrate that he engaged with
    shortcomings in the complainants evidence, and adequately explain why he found
    her credible nonetheless. It is clear that his reasons for finding the
    complainant credible, considered in the context of the evidentiary record and
    the submissions at trial, permit appellate review

(2)

The scars

[32]

The
    second inconsistency that the appellant argues the trial judge failed to engage
    with as a result of an over-extension of the principles from
D.D.

and
D.P.

arises out of the
    complainants evidence about scars on her chest from an assault.

In her
    victim impact statement dated March 10, 2015, written when she was fifteen
    years of age, the complainant reflected on the effect of the abuse on her. She
    wrote that every time I changed my clothes, I saw the scars  the physical
    ones, the ones that always reminded me of what happened. Later in the
    statement she says I still have physical scars that upset me, but have learned
    to overlook them. She explained during cross-examination at trial that the
    scars referred to in her victim impact statement were from cuts on [her]
    boobs from the appellant dragging his teeth across them. She testified during
    cross-examination that she wrote the victim impact statement herself and that
    everything in it was true. She also testified that, you know, every time I
    looked in the mirror I remembered what had happened.

[33]

After
    receiving this statement, the police interviewed her a second time, on March
    23, 2015. The complainant did not adopt her March 23, 2015 police statement during
    trial and it was not in evidence. The Crown objected to the appellants trial
    counsels cross-examination of the complainant about her March 23, 2015
    statement, without having first played or recited the relevant portions, arguing
    that he was inaccurately paraphrasing her statement and risked unfairly
    confusing her. This led to the video of this statement being played for the
    trial judge, in the absence of the complainant
,
and defence counsel subsequently
    providing an unofficial transcription of sound bites from that interview to
    the trial judge. According to the transcript, the sound bites provided
    included that the complainant said during this police interview that she could
    probably see the scars because she knew where they were, but she didnt know if
    anybody else would be able to tell. During her cross-examination at trial, some
    excerpts of this March 23, 2015 police statement were put to her, but this was
    not one of them.

[34]

During
    her cross-examination, the complainants testimony on the issue of when the
    scars had faded was confused. She testified that:

·

at the time of her March 10, 2015 victim impact statement, the
    scars were fading but were not completely gone and might have still been
    visible;

·

when she wrote her March 10, 2015 victim impact statement, she
    was sure she still had scars;

·

she told a police officer in her March 23, 2015 police statement
    that the scars were there for a year to a year and a half, and that she was
    telling the truth in that statement;

·

at the time of her March 23, 2015 police statement, the scars
    were starting to fade; and

·

the scars were not visible at the time of her March 23, 2015
    police statement.

[35]

When
    pressed on these points throughout her cross-examination, she repeated that she
    could not remember when the scars faded.

[36]

The
    appellants trial counsel argued that the complainant lied in her victim impact
    statement: it was ridiculous that the appellants teeth could have caused
    scars and it did not make sense that any scars would still be visible up to a
    year and a half after the last assault occurred. Whether there was physical
    evidence of the assaults was an important issue and the lie detracted from her
    credibility on the issue of whether the assaults occurred.

[37]

In
    his reasons, the trial judge wrote that the reasons why many victims of sexual
    abuse delay in reporting the abuse apply also to the details of the abuse. He
    found that there was nothing surprising about the way the disclosure of the
    marks unfolded in this case. What was important for the complainant was how
    the marks made her feel when she saw herself in the mirror. He rejected the assertion
    that it was ridiculous that the appellants teeth could have caused the marks.
    As to the length of time that the marks were present, the trial judge held that
    her evidence was that she really was not sure, and she noted that she would be
    able to see the marks, even if they were not visible to others, because she had
    known where they were.

[38]

The
    trial judges reasons make clear that, despite the delayed disclosure, he
    accepted that the appellants teeth had left marks on the complainants chest.
    Essentially, relying on her victim impact statement, he accepted that when the
    complainant looked at herself in the mirror, she remembered the marks  and how
    she acquired them  and still saw them. For him, what was important in the
    complainants evidence was how she felt when she looked at herself in the
    mirror. The trial judge did not side-step the alleged inconsistency about how
    long the marks lasted by improperly relying on
D.D.

and
D.P.

Rather, he resolved any alleged inconsistency because he
    found that the complainants evidence at trial was that she did not know how
    long the scars remained visible. While the trial judges explanation might have
    been clearer, this is not a reason for a new trial. His reasons are sufficient
    to permit appellate review.

[39]

In
    his factum, the appellant also argues that in his reasons the trial judge improperly
    referred to what the complainant said in the March 23, 2015 police statement 
    namely that she would be able to see the marks, even if they were not visible
    to others, because she had known where they were  and the March 23, 2015
    police statement was not in evidence. I note that counsel for the appellant at
    trial treated this statement as if it were evidence: he put this particular
    passage in the statement to the trial judge in his closing submissions. This
    may be why the appellant chose not to pursue this point in his oral
    submissions.

[40]

When
    a judge refers to material not properly before him or her, this can be
    characterized as a misapprehension of evidence:
R. v.
    Morrissey

(1995)
,
97 C.C.C.
    (3d) 193, at p. 221;

R. v. Smith
,
2011
    ONCA 564, 274 C.C.C. (3d) 34, at para. 61. However, the mere fact that a trial
    judge references material not in evidence does not mean that such material
    influenced the trial judges reasoning such that the appellant did not receive
    a fair trial, warranting appellate intervention:
Morrissey
,
at p. 221;
R. v. Lohrer
,
2004 SCC
    80, [2004] 3 S.C.R. 732, at paras. 1-2; and
R. v. Cloutier
,
2011 ONCA 484, 272 C.C.C. (3d) 291, at paras. 99-104.

[41]

From a review of the entire transcript, the trial judge
found
    the complainants evidence to be that she was not sure when the scars faded,
    and for this reason gave what the appellant has characterized as
    inconsistencies little weight. The point about the complainant being able to
    see the scars because she knew where they were was not central to the trial
    judges reasoning. I am satisfied that no miscarriage of justice occurred and
    would rely on the curative proviso

in s. 686(1)(b)(iii) of the
Criminal Code

if
    necessary.

(3)

The May 4, 2013 email

[42]

What
    the appellant characterizes as the third inconsistency the trial judge failed
    to engage with as a result of an over-reliance on
D.D.

and
D.P.

arises out of the email which the complainant sent to
    the appellant dated May 4, 2013  about six months after she says the abuse
    ended and about four months before her initial disclosure. The email begins, I
    wrote this letter to you to try and explain to you why Im upset and why I
    wont talk to you. The complainant sets out several complaints about the
    appellants behaviour since he acquired a girlfriend. For example, he did not
    attend her school events and took no interest in her graduation from the eighth
    grade. But she makes no mention of the sexual assaults.

[43]

The
    complainant testified that while frustrated and upset with her fathers
    behaviour and while she wanted to visit and spend time with him, together with
    her sisters, as reflected in the May 4, 2013 email, at the same time she was
    also afraid of being assaulted again.

[44]

Among
    other things, the appellants trial counsel argued that the email is
    inconsistent, and cannot be reconciled, with the sexual abuse the complainant
    alleges occurred. Why would she complain about the appellant not spending time
    with her, if he had been sexually abusing her, and she was afraid of him?

[45]

The
    trial judge sufficiently articulated why he rejected this argument:

this argument ignores the dynamics of the complainants
    relationship with her father. She wanted to spend time with him because he was
    her dad. She needed him to be a part of her life. The things she complained
    about were important to her. The abuse had stopped six months previously when
    the accused began a relationship with his girlfriend. And the same reasons why
    she delayed in disclosing the abuse would apply to her failure to mention it in
    the letter  she was not ready to deal with it.

[46]

The trial judge did not over-extend the principles from
D.D.

and
D.P.

Rather, he properly
    applied those principles and, in conjunction with other evidence, he grappled
    with and resolved what the appellants counsel at trial argued were the major
    inconsistencies in the complainants evidence.

(4)

The text
    messages

[47]

The
    remaining purported inconsistency related to the complainants and her mothers
    evidence that the appellant sent the complainant inappropriate text messages.
    The complainant said that the appellant sent her inappropriate text messages
    referring to her as sexy or babe or just names that you would usually call
    a wife or a girlfriend, not your daughter. The messages were not available at
    trial. While maybe not always right away, the complainant says she deleted the
    messages. However, her mother saw some texts and was angry about them. The
    mother testified that the texts were inappropriate and the appellant addressed
    the complainant as babe and sweetheart.

[48]

The
    appellant argues that in his reasons the trial judge failed to address the inconsistency
    between the complainants and the mothers evidence. The complainant said he
    used the term sexy; the mother said sweetheart.

[49]

A
    trial judge need not review and resolve every inconsistency in a witness
    evidence, nor respond to every argument advanced by counsel:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. 536, at para. 14.

[50]

I am
    not persuaded that this was a major inconsistency that the trial judge was
    required to address in his reasons. Neither the mother nor the complainant
    testified that the mother saw all the text messages. Moreover, the mother did
    not say that there were no text messages that used the word sexy; it simply
    was not one of the examples she gave. Finally, the complainants evidence was
    consistent with her mothers evidence that the appellant sent the complainant
    texts which were inappropriate. In the mothers case, the texts she saw, among
    other things, caused the mother to contact The Childrens Aid Society with her
    concerns in September of 2012.

(5)

The custody
    proceeding as a motive to fabricate

[51]

The
    appellants final argument is that the trial judge failed to address the
    defence theory that the complainant fabricated the assaults because she did not
    want to live with her father. In his closing submissions, the appellants trial
    counsel did not identify this as one of his three major areas he would
    address.

[52]

The
    complainant testified that she might have called the appellant after a fight
    with her mother and told him she wanted to come and live with him  but I
    dont know how much I actually meant that. She was shocked when the appellant
    followed up on the conversation by attempting to enroll her in a different
    school and obtain custody. She was living fulltime with her mother and did
    not want to leave her school or live with the appellant. She disclosed the
    assaults shortly before the September 2013 custody hearing.

[53]

While
    the appellants trial counsel questioned the complainant about her
    understanding of the custody proceedings between her parents, he never directly
    put to the complainant that she had fabricated the assaults because she did not
    want the appellant to have custody over her. His questioning of the complainant
    probed his theory that she did so because she was unhappy and angry about the
    appellant replacing her and her sisters with his girlfriends children and his
    lack of interest in her life since his relationship with his girlfriend. He
    argues that this was shown by the May 4, 2013 email. The appellants trial
    counsel put to the complainant that she fabricated the allegations against the
    appellant because she felt she had been replaced by his girlfriends sons. The
    complainant denied this.

[54]

The
    mothers evidence was that she was not concerned about the custody proceeding:

I was fully aware that I would probably win. I had no doubt in
    my mind that hed be able to take them, after walking out and being gone for a
    few years, that he would be able to take them away from me.

[55]

Moreover,
    at the time of trial, the custody dispute had been resolved in favour of the
    mother.

[56]

In her
    closing submissions, the Crown submitted that the argument that she anticipated
    that the defence counsel would make that the complainant made this up to
    avoid having to live with the appellant was not persuasive or credible: the
    mother had testified that the chance of the children going to live with the
    appellant was minor. And if the complainant were trying to thwart his custody
    efforts, why was she so reluctant to come forward? Moreover, the supposed
    custody motivation to fabricate was moot. It had been resolved.

[57]

In
    his closing submissions, after addressing the May 4, 2013 email, which, as
    indicated above, he argued at some length supported his theory that the
    complainant made the allegations because she was unhappy and angry about the
    appellant replacing her and her sisters with his girlfriends children and his
    lack of interest in her life, the appellants trial counsel more briefly
    referred the trial judge to the complainants testimony about not wanting to
    change schools and noted that the custody hearing was scheduled approximately
    two weeks after the complainant disclosed the abuse. He continued, [w]ith all
    of this going on in the background, there has to be a reasonable doubt about
    her motivation.

[58]

In
    the context of his submissions, the all of this was what the appellants
    trial counsel described as the complainants unhappiness and anger about the
    appellant replacing her and her sisters with his girlfriends children and his
    lack of interest in her life, which he argued was shown by the May 4, 2013
    email  one of the three major areas addressed in his submissions  plus the
    appellant trying to enroll the complainant in a different school and obtain
    custody to which he made briefer reference. The motivation to fabricate was not
    presented as a fourth, separate point; it was framed as part of the argument
    about the May 4, 2013 email.

[59]

The
    trial judge engaged the appellants trial counsel on these submissions. In
    response to trial counsels submission that if it were believable that the
    complainant invented the allegations, thats an acquittal, the trial judge responded:
    [n]o question of that.

[60]

The
    appellants counsel correctly states that, in his reasons, the trial judge did
    not refer to trial counsels reference to the complainant not wanting to change
    schools or live with the appellant. It was not the appellants main argument on
    the motive to fabricate, but, ideally, the trial judge would have done so.
    However, the trial judge specifically engaged Crown counsel on the supposed
    motive to fabricate to avoid having to live with the appellant and engaged the appellants
    trial counsel generally on the motive to fabricate during closing submissions. One
    of these exchanges is summarized in the trial judges reasons in the section on
    the May 4, 2013 email, which mirrors the way counsel for the appellant at trial
    organized his closing submissions. Trial judges are not held to a standard of
    perfection. Considering the trial judges reasons in the context of the record,
    including the submissions of counsel, as
Dinardo
,
    at para. 25, directs, it is clear that the trial judge seized the substance of
    the defence theory of motive to fabricate and was satisfied beyond a reasonable
    doubt that the complainant had not fabricated her allegations. In context, the
    trial judges reasons on this issue are sufficient.

C.

Disposition

[61]

For
    the reasons above, I would dismiss the appeal.

Alexandra
    Hoy A.C.J.O.

I agree David M.
    Paciocco J.A.




Nordheimer J.A. (dissenting):

[62]

I have reviewed my colleagues reasons. I do not
    agree with her conclusion. The crux of my disagreement is a narrow one. It
    concerns the adequacy of the trial judges reasons and whether they justify and
    explain the verdict he reached.

[63]

The requirement that judges give reasons for
    their decisions is well-established. It is a fundamental part of the judicial
    function. The purpose behind trial judges providing reasons for their decisions
    was explained in
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869,
    where Binnie J. said, at para. 24:

At the trial level, the reasons justify and explain the result.
    The losing party knows why he or she has lost. Informed consideration can be
    given to grounds for appeal. Interested members of the public can satisfy
    themselves that justice has been done, or not, as the case may be.

[64]

This purpose was elaborated on in
R. v.
    R.E.M.
,
2008 SCC 51, [2008] 3 S.C.R. 3, where McLachlin C.J. said,
    at para. 25:

The functional approach advocated in
Sheppard
suggests
    that what is required are reasons sufficient to perform the functions reasons
    serve  to inform the parties of the basis of the verdict, to provide public
    accountability and to permit meaningful appeal.

[65]

My colleague appears to take the position that
    so long as an appellate court can engage in a meaningful review of the
    correctness of the trial judges decision, then the reasons have met their
    purpose. I disagree. As these authorities make clear, meaningful appellate
    review is only one of the purposes that reasons serve.

[66]

Central to this case is whether the complainants evidence could
    satisfy the court of the appellants guilt beyond a reasonable doubt. Critical
    to that conclusion is an explanation of why issues raised by the complainants
    evidence did not raise that reasonable doubt. The appellant had the right to
    know why the trial judge accepted his daughters allegations in light of
    inconsistencies in her version of the events and also of conduct that might be
    seen to be inconsistent with her allegations. At the very least, the appellant
    had the right to an explanation as to why these inconsistencies did not raise a
    reasonable doubt. As stated in
R. v. Gagnon
, 2006 SCC 17, [2006] 1
    S.C.R. 621, at para. 21, an accused is entitled to know why the trial judge is
    left with no reasonable doubt. Further, [i]nadequate reasons with respect to
    credibility may justify appellate intervention:
R. v. Braich
, 2002
    SCC 27, [2002] 1 S.C.R. 903, at para. 23.

[67]

There were two distinct events that should have
    caused the trial judge some pause in terms of his acceptance of the
    complainants evidence: the alleged assaults in Niagara Falls and the
    allegations of scars on the complainants breasts. In addition, there was the
    overarching context in which the complainants allegations were made that had
    to be considered, that is, her parents custody battle.

(1)     The
    Niagara Falls assaults

[68]

In terms of the Niagara Falls assaults, it is
    important to remember that the complainant failed to mention these assaults at
    any point in time until she was cross-examined at trial. This is despite the
    fact that many months had passed since the complainants original reporting of
    the other assaults and the fact that she was directly asked, in her police
    interview, where the assaults had taken place and she replied, pretty sure it was
    all at the trailer. The trial judges response to this issue was to rely on
    the decision in
R. v. D.D.
, 2000 SCC 43, [2000] 2 S.C.R. 275. He
    concluded that he was unable to draw an adverse inference from the fact that
    the complainant did not mention the Niagara Falls assaults earlier.

[69]

The trial judges reference to
D.D.
is
    an inadequate explanation for his disposal of this issue as it relates to his
    credibility findings. As important as
D.D.
is for the purpose of
    dispelling stereotypical thinking about how victims of abuse would be expected
    to reveal abuse, it is not a panacea for every issue that arises in the
    credibility analysis of a complainants evidence. Yet I fear that is how the
    trial judge used it in this case.

[70]

I first note that
D.D.
,
and the
    expert evidence that was at the centre of that decision, related to delayed
    disclosure, not piecemeal disclosure of the type that is present here. That
    said, I am aware that this court, in
R. v. D.P.
,

2017 ONCA 263,
    leave to appeal refused, [2017] S.C.C.A. No. 261, said that the principles in
D.D.
were potentially applicable to both delayed disclosure and piecemeal
    disclosure. This court added to that observation, however, the proviso that its
    application would depend on the circumstances revealed by the evidence in any
    particular case: at para. 31. That proviso suggests that the application of
    the principles in
D.D.
to piecemeal disclosure requires a separate
    analysis in each case. No such analysis appears in the trial judges reasons.

[71]

In addition, the context in which that
    observation was made in
D.P.
must be kept in mind. The situation in
D.P.
was one where the complainant first told the police about two assaults and
    then, a few months later, revealed a third assault. In other words, the complainant
    in that case revealed all of the assaults to the police in a relatively narrow
    time frame. In this case, the complainant made no mention of the Niagara Falls
    assaults when she spoke to the police in September 2013, despite the
    questioning I referenced above. The assaults were said to have occurred between
    February and November of 2012. The Niagara Falls trip occurred in the summer of
    2012.

[72]

In addition, the complainant was interviewed by
    the police again in 2015 about the scars on her breasts, a separate subject I
    will address shortly. Once again, the complainant did not say anything about
    being assaulted by her father when they were on the trip to Niagara Falls, even
    though the police were asking her about scars that the complainant said had
    been left on her breasts by her fathers teeth arising from his assaultive
    behaviour. About three years have now passed since the assaults were alleged to
    have occurred and one and a half years have passed since the complainants
    disclosure of the other assaults to the police.

[73]

Second, the reference that the trial judge
    quoted from
D.D.
(which is found at para. 63, not para. 49 as cited by
    the trial judge) says that the failure to make a timely complaint must not be
    the subject of any presumptive adverse inference. The decision does not say
    that the issue of delay has no relevance to the credibility analysis. It simply
    says that a presumption is not to be invoked arising from any delay in
    reporting. Delay in reporting may still be relevant depending on the factual circumstances
    of the case. Piecemeal reporting may also be relevant. It requires some
    consideration of the reasons, if any, that are offered for the delayed or
    piecemeal disclosure and the surrounding circumstances.

[74]

In this case, by way of example, the complainant
    had come forward to the police to reveal the assaults that she says her father
    committed. Having come to the decision to reveal such intimate events, a
    question would naturally be raised why she would not have mentioned the Niagara
    Falls assaults in the course of reciting these troubling events. In that
    regard, it is of some moment to remember that the complainant was on a special
    trip to Niagara Falls alone with her father. It would presumably be an event of
    some significance in her life, a special moment in her relationship with her
    father. If that special moment was violated through abusive conduct, one would
    think that the complainant would have revealed it to the police, at some point,
    given that she had then decided that she was able to reveal details of all of
    the other assaults.

[75]

None of this is meant to suggest that the
    failure to mention the Niagara Falls assaults was fatal to the complainants
    credibility. What I do say is that the trial judge had to directly address the
    issue. He could not dismiss its relevance to the credibility analysis simply by
    relying on
D.D.
,
nor by seeking to demonstrate that he was not
    applying stereotypical thinking.

(2)     The scars

[76]

The other issue that arises is with respect to
    the scars on the complainants breasts. This issue arose in a somewhat unusual
    way. The complainant filled out a victim impact statement in March 2015. The
    victim impact statement was the first time that the complainant revealed the
    existence of the scars.

[77]

After receiving the victim impact statement, and
    seeing this reference, the police interviewed the complainant about the scars.
    She told the police that the scars had been present for a long time  a year to
    a year and a half. The assaults, where the scars were said to have been
    occasioned, had occurred at least two years earlier. The complainant was
    inconsistent in whether the scars were still visible at the time she completed
    the victim impact statement. At different points, she said that she did not
    know whether the scars were visible; that the scars were not completely gone
    but were fading; that while the scars were fading, they might still be visible;
    and that when she wrote her victim impact statement, she was sure that the
    scars were visible. At trial, the complainant first said that the scars were
    starting to fade just before she completed her victim impact statement, and
    later said that they were not visible at that time.

[78]

In his reasons, the trial judge referred to the
    complainants evidence on this point and quoted her as saying that the scars
    had recently faded and that only she could see them. That reference actually
    appears to be from the complainants statement to the police, that was referred
    to by counsel when issues arose between counsel on the use of the police
    statement. I cannot find where the complainant ever adopted that statement, or
    made an equivalent statement, in her evidence. The fact that the trial judge
    relied on a statement that was not properly in evidence before him is, itself,
    problematic:
R. v. Morrissey

(1995)
,
97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221.

[79]

In any event, the trial judge rejected the
    defence submission that the issue over the scars went to the complainants
    credibility. He did so, once again, on the basis that the understanding
    regarding delayed disclosure also applies to the details of the abuse. The
    trial judge said that there was nothing surprising about the way disclosure of
    the marks unfolded in this case. He then said:

What was important for the complainant was not so much the
    incident that caused the marks; but rather, how the marks made her feel when
    she saw herself in the mirror.

The trial judge also said that there
    is nothing ridiculous about the complainants evidence regarding how the
    marks were caused.

[80]

In my view, the trial judge failed to address
    this issue in any meaningful way in terms of the complainants credibility.
    First, there is no evidence that the incident that caused the marks was not
    important to the complainant. To the contrary, her fathers assaultive
    behaviour was front and centre in terms of her concerns. Second, the idea that
    her father dragged his teeth across her breasts, in the course of a sexual
    assault, that caused scarring that lasted for a year to a year and a half is,
    on its surface, extremely troubling. While there was no medical evidence on
    this point, common knowledge would raise questions about whether such injuries
    could have occurred as described by the complainant. The evidence raised an
    obvious problem regarding the complainants credibility that simply could not
    be dismissed in the fashion that the trial judge did. It certainly could not be
    dismissed on the basis of delayed disclosure and the principles enunciated in
D.D.

[81]

On that point, my colleague says that the trial
    judge did not side-step
this issue by improperly relying on
D.D.

and
D.P.
,
    although she does allow that the trial judges reasons 
might have
    been clearer. That is more than a generous characterization of the trial
    judges reasons. The fact is that the trial judge did side-step this issue 
    something that he was not entitled to do.

(3)     The custody
    battle

[82]

Finally, overshadowing this entire case, is the
    fact that all of these events occurred in the context of an ongoing custody
    battle between the appellant and the mother. Indeed, the evidence is that the
    complainant made her statement to the police approximately two weeks before a
    hearing was to be held on her fathers application for custody. The trial judge
    makes no mention of this fact. Experience reveals that some parents will
    attempt to improve their chances of obtaining custody of their children by encouraging
    the children to make allegations of abuse, either physical or sexual. No matter
    how abhorrent that conduct may be, it does not change the fact that it occurs.
    It can provide a motive for fabrication. As observed by Doherty J.A. 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.

[83]

The trial judge was required to consider this
    issue in the course of his analysis and conclusion, but there is nothing in his
    reasons to suggest that he did. That failure cannot be excused. It certainly
    cannot be excused by referring to the exchange between counsel and the trial
    judge during closing submissions. Appellate review of a trial judges decision
    is based on the reasons, not on exchanges with counsel. In
any event, the exchange with counsel does
    not assist this court in deciding whether the trial judge actually took this
    factor into consideration and, if he did, how he did so.
The fact that the trial judge acknowledged the consequences during
    submissions, does not mean that he applied those consequences in reaching his
    decision. This was a factor that directly related to the complainants
    credibility. It had to be both acknowledged and addressed. Neither occurred in
    this case.

[84]

I understand that a trial judges credibility
    findings are entitled to deference. But that does not mean that they are immune
    from review. As was noted in
D.P.
,
at para. 6:

When an appellant alleges that a verdict based on a credibility
    assessment is unreasonable, this court must, to a limited extent, make its own
    assessment of the complainant's credibility.

[85]

The function that reasons perform takes on
    special importance in a credibility case. It has been said that a trial judges
    findings on credibility acquire particular importance where the trial judge
    must resolve confused and contradictory evidence on a key issue, unless the
    basis of the trial judge's conclusion is apparent from the record:
Sheppard
,
    at para. 55.

[86]

The need for reasons in support of credibility
    findings was front and centre in
R. v. Dinardo
,
2008 SCC 24,
    [2008] 1 S.C.R. 788. In finding the trial judges reasons inadequate in that
    case, Charron J. said, at para. 27:

As I will now explain, it is my view that the trial judge fell
    into error by failing to explain how he reconciled the inconsistencies in the
    complainant's testimony on the issue of whether she invented the allegations. I
    also conclude that the trial judge's failure to provide such an explanation
    prejudiced the accused's legal right to an appeal.

In my view, the same can be said for
    the trial judges reasons in this case.

[87]

A further observation that Charron J. made in
Dinardo
also has application to the case here. She said, at para. 31:

In this case, the complainant's truthfulness was very much a
    live issue  While it was open to the trial judge to conclude that he was
    convinced beyond a reasonable doubt of the guilt of the accused,
it was not open to him to do so without explaining how he
    reconciled the complainant's inconsistent testimony
, particularly in
    light of the accuseds own evidence denying her allegations. [Emphasis added.]

[88]

I repeat that I am not saying that the trial
    judge could not have accepted the complainants evidence in the final analysis.
    What I am saying is that the trial judge had to directly address the
    inconsistencies in the complainants evidence, and explain why they did not
    leave him with a reasonable doubt regarding the appellants guilt. This he
    failed to do. Simply repeating that he is not engaging in stereotypical
    thinking about how complainants may react in sexual assault cases does not, by
    itself, satisfy this necessary requirement. Understanding and avoiding
    stereotypical attitudes merely eliminates improper presumptions being applied.
    It does not relieve a trial judge from having to address serious
    inconsistencies in the evidence, or from having to explain why they do not
    raise a reasonable doubt.

[89]

In the end result, I return to the purpose of
    reasons as enunciated in
Sheppard
. They are to explain the result to
    the parties so that [t]he losing party knows why he or she has lost: at para.
    24. It is not sufficient that an appellate court may be able to dig through the
    record and figure out a route to explain the result that the trial judge did
    not express, as my colleague has so capably done. An accused person is entitled
    to a proper explanation in the first instance.

[90]

I appreciate the point that Binnie J. made in
Sheppard
,
    when he said, at para. 24, the requirement of reasons is tied to their purpose
    and the purpose varies with the context. He also, at para. 29, repeated the
    point made by Laskin C.J. in
Macdonald v. The Queen
,
[1977] 2
    S.C.R. 665 that imposing a general duty on judges to give reasons, especially
    in the busy criminal courts, would risk ending up with a ritual formula (p.
    672) that would be of no real assistance to the parties or to a reviewing
    court.

[91]

In referring to those observations, I note that
    their origin is now more than forty years past. Times have changed, as has the
    manner in which trials are conducted. Pre-trials and trial management serve to
    streamline and focus the evidence in serious cases. Technology now greatly
    assists in the process of providing reasons. Consequently, the historic excuse
    of workload pressures in trial courts provides only limited justification, in
    the current climate, for deficiencies in reasons. Even accepting that the nature
    and volume of the trial work in the Ontario Court of Justice could rationalize
    a less rigorous standard being applied for reasons in that court, no such
    rationalization presents itself in the Superior Court of Justice. Trial judges
    in the Superior Court of Justice have sufficient time to craft proper reasons
    that fully address the issues raised in any given case. Time constraints do not
    provide any acceptable explanation for deficient reasons emanating from that
    court. Indeed, I suggest that time constraints do not provide justification in
    any case where serious criminal charges are involved.

[92]

I repeat Binnie J.s point that the purpose of
    reasons varies with the context. In that regard, it is to be remembered that
    the accused in
Sheppard
was charged with possession of stolen
    property, being two casement windows with a value of $429, not the most serious
    charge known to our criminal law. Nevertheless, the Supreme Court of Canada
    concluded that the perfunctory reasons given by the trial judge constituted an
    error of law.

[93]

Contrast that situation, and result, with the
    case here. There can be few situations more serious for a parent than to be
    accused of abusing one of their children, much less be found guilty of that
    conduct. If a parent is to be found guilty of such an offence, then they are
    entitled to know, with clarity, why that result was reached. A convicted person
    should not have to guess at the reasons for their fate, nor should they have to
    await an appellate court explaining that which the trial judge failed to
    explain. To hold otherwise is simply not an acceptable approach for our justice
    system to take.

[94]

The trial judge failed to properly address the
    inconsistencies in the complainants evidence and did not consider the context
    in which the allegations were made. The trial judge did not adequately explain
    why he concluded that the offence was proven beyond a reasonable doubt. The
    reasons fail to accomplish that goal for the appellant, and they fail to do so
    for the public at large. Consequently, the reasons fail to fulfill one of the
    fundamental purposes underlying the requirement for reasons.

[95]

I would allow the appeal, set aside the
    conviction, and order a new trial.

Released: AH JUNE 17 2020

I.V.B.
    Nordheimer J.A.


