



WARNING

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

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

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    the complainant or a witness shall not be published in any document or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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.M., 2014 ONCA 785

DATE: 20141107

DOCKET: C57526

Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.M.

Appellant

Frank Addario and Rebecca McConchie, for the appellant

Avene Derwa, for the respondent

Heard: September 12, 2014

On appeal from the convictions entered on June 5, 2013,
    by Justice N. Jane Wilson of the Ontario Court of Justice.

Gillese J.A.:

OVERVIEW

[1]

The appellant was convicted, after a judge-alone trial, of one count of sexual
    assault and two counts of sexual exploitation of the complainant, his foster
    child.  He was sentenced to 18 months imprisonment and a one-year term of
    probation.

[2]

The appellant testified at the trial and denied ever having sexual
    contact with the complainant.  At trial, the defence suggested that the
    complainant made up the allegations because she was infatuated with the
    appellant and fantasized about being his partner.

[3]

The appellants appeal against conviction rests on his contention that the
    trial judge made a number of errors in her treatment of both his testimony and
    that of the complainant.

[4]

In my view, the trial judge made none of the alleged errors.  Consequently,
    I would dismiss the appeal.

BACKGROUND IN BRIEF

[5]

In June of 2006, the complainant and her younger sister moved into the
    home of the appellant and his partner, CM.  The complainant was 13 years old at
    the time of the move.  She had had a very difficult childhood before the move
    and, as a result, was immature and naïve for her age.  She felt happy and
    secure in her new home and enjoyed spending time with the first real family
    that she had ever had.

[6]

The complainant alleged that in early May 2010, the appellant began to
    touch her sexually.  She was 17 years old at that time.  She said that the
    first incident of sexual touching took place on the day before Mothers Day
    2010, when the appellant touched her breasts and implied that he had an
    erection.  After that incident, she testified that the appellant would fondle
    her breasts and vagina on a weekly basis, usually on the couch in the living
    room of the family home or in the appellants truck.  The appellant was
    teaching the complainant how to drive.  According to the complainant, the
    appellant touched her sexually many times when they were in his truck.

[7]

The complainant turned 18 on August 5, 2010.  On August 18, 2010, she
    and the appellant had intercourse.  Although the complainant testified as to
    acts of intercourse and oral sex that took place after her 18
th
birthday, those acts fell outside the scope of the Information.

[8]

According to the complainant, the appellant ended the sexual
    relationship with her in January of 2011.  He then began ignoring and avoiding
    her.  In response, she started going crazy and acting out (odd behaviour). 
    The complainants odd behaviour during this period included such things as sitting
    in the appellants truck, very early in the morning, waiting for him.  This
    occurred even on days on which the appellant was not giving the complainant a
    ride to work.  As well, the complainant would spend hours alone in the bush
    during this period.  Her odd behaviour further included a change in her
    interactions with CM.  Where the complainant and CM had once had a close
    relationship, during the time in which the complainant was exhibiting odd
    behaviour, their relationship deteriorated significantly and they fought on a
    daily basis.

[9]

In late November 2011, the complainant told her close friends, ET and
    SR, about her sexual relationship with the appellant.  She also sent them text
    messages in which she discussed what had happened.  Although ET and SR
    encouraged the complainant to tell the police or someone else in a position of
    authority about the abuse, she refused because she did not want to lose her
    family.

[10]

ET
    and SR disclosed the alleged abuse to the police on December 6, 2011.

[11]

That
    evening, Officer Limlaw spoke with the complainant.  She told him that in May
    2010, while she was in the living room of the family home with the appellant,
    his hand touched her breast.  Officer Limlaw testified that the complainant
    told him that when she woke up the next morning she wondered if the touching
    had been a dream.  He also testified that the complainant told him that she had
    feelings for the appellant.  Officer Limlaw understood her to mean sexual
    feelings.  He further testified that the complainant refused to give a formal
    statement to the police.  Officer Limlaw got the impression that the refusal
    was because the complainant did not want anything negative to happen to the appellant.

[12]

The
    complainant, ET, SR, Officer Limlaw and Alicia Michaud, a worker with Family
    and Childrens Services in Renfrew County, testified at trial on behalf of  the
    Crown.  The text messages were admitted into evidence.

[13]

The
    appellant also testified at trial.  He denied that any touching of a sexual
    nature had taken place.  As well, CM testified for the defence, saying that she
    never witnessed any sexual contact between the appellant and the complainant.

THE TRIAL DECISION

[14]

The
    trial judge began the analytical part of her reasons for decision by identifying
    credibility as the key issue and noting that she needed to follow the principles
    laid down by the Supreme Court of Canada in
R. v. W. (D.),
[1991] 1
    S.C.R. 742.

[15]

The
    trial judge reviewed the appellants testimony in considerable detail before rejecting
    it.  She then considered whether the appellants testimony, together with that of
    CM, raised a reasonable doubt as to his guilt.  She found that it did not.

[16]

Next,
    the trial judge considered the evidence as a whole and found that the Crown had
    met its burden, with the result that she was satisfied, beyond a reasonable
    doubt, of the appellants guilt.

[17]

In
    reaching this conclusion, the trial judge gave lengthy reasons for accepting
    the complainants testimony, finding it both credible and reliable.  She noted
    that the complainants evidence was not self-serving and that, despite the
    complainants obvious naiveté about sexual matters, she had described, in
    considerable and accurate biological detail, the various sex acts that had
    taken place.  She also found that the complainant did exhibit the odd behaviour
    in 2011, about which the complainant had testified, and that the odd behaviour
    was consistent with the sexual relationship between the appellant and the
    complainant having ended.  She further found that the complainant had not been
    shaken on cross-examination and that any inconsistencies in her testimony were
    peripheral or inconsequential.

THE ISSUES

[18]

The
    appellant submits that the trial judge erred:

1.  by reversing the burden
    of proof, when assessing his evidence;

2. by misapprehending his
    evidence regarding the complainants odd behaviour;

3.  in finding that
    inadmissible and neutral evidence corroborated the complainants testimony; and

4. by misapprehending
    inconsistencies in the complainants evidence.

ANALYSIS

1.       Did the trial judge reverse the burden of
    proof when assessing the appellants evidence?

[19]

The
    appellant says that the trial judge rejected his evidence because she found his
    denials to be simplistic, brief, and repetitive and, for that reason, his
    evidence did not satisfactorily answer the allegations.  The appellant submits
    that finding his evidence flawed because he was consistent in his denials and
    could not provide details of unremarkable events was legally erroneous and a
    failure to give effect to the presumption of innocence. The appellant further contends
    that the trial judge reversed the burden of proof by requiring him to provide
    an answer to the allegations when the legal burden was on the Crown to prove
    the allegations, not on him to disprove them.

[20]

There
    are two branches to the appellants submission on this ground of appeal.  I
    would accept neither.

Lack of Detail in the
    Appellants Testimony

[21]

The
    first branch of the appellants argument is that the trial judge rejected his testimony
    because it lacked detail.  He points to para. 160 of the trial judges reasons
    as support for this contention.  Paragraph 160 reads as follows:

The Court rejects the evidence of [the appellant] with respect
    to the allegations for the following reasons:

1.   His responses to the allegations were simplistic and often
    given before he understood the question.  His responses to various allegations
    were styled similarly, in a brief fashion.

2.  He gave evidence which was self-serving to the effect that
    the opportunity to commit the offence was not significant or non-existent.  The
    Court refers to the above discussions with respect to his residence and the
    driving.

3.  He denied and then minimized [the complainants] odd
    behaviour in the spring and fall of 2011.

[22]

The
    appellant also points to the trial judges treatment of his testimony about
    Mothers Day 2010, and says that she unfairly rejected his testimony due to a
    lack of detail.  While I refer to this testimony as Mothers Day 2010, it is
    worth bearing in mind that the first incident of sexual touching was alleged to
    have taken place the evening before Mothers Day 2010, rather than on Mothers
    Day 2010 itself.

[23]

I
    do not accept that para. 160 shows that the trial judge rejected the
    appellants evidence because it lacked detail.

[24]

Paragraph
    160 is the concluding paragraph to the trial judges analysis of the
    appellants testimony.  In it, the trial judge gives a brief summary of the three
    reasons that led her to reject the appellants testimony.  It is true that in
    the first of the three reasons, the trial judge said that she found the
    appellants responses to be simplistic and often given before the questions
    were fully put to him.  However, this seems to me to be a comment on the
    appellants demeanour.  Certainly, on a plain reading of the first reason, it
    does not say that the trial judge rejected the appellants testimony because it
    lacked detail.

[25]

However
    and in any event, the first reason does not stand alone.  In para. 160, the
    trial judge gave three reasons for finding that the appellants testimony
    lacked credibility.  The second reason was the self-serving nature of the appellants
    evidence, which minimized his opportunity to commit the offences.  In this
    regard, the trial judge was unconvinced by the appellants testimony that he
    rarely had an opportunity to be alone with the complainant.  At para. 139 of
    her reasons, the trial judge stated:

The Court rejects his evidence that he was not often alone in
    the house with [the complainant].  It appears patently clear that he was, and
    that sometimes that occurred in the living room, despite his very obvious (and
    unsuccessful) attempt to indicate otherwise during cross-examination.

[26]

The
    third reason given by the trial judge for rejecting the appellants testimony
    relates to his minimization of the complainants odd behaviour in 2011.  This
    matter is discussed more fully below in issue #2.

[27]

Accordingly,
    it cannot fairly be said that para. 160 shows that the trial judge rejected the
    appellants testimony due to its lack of detail.

[28]

I
    would add that although not expressly included in para. 160, a reading of the
    reasons as a whole reveals a further reason for the trial judges rejection of the
    appellants testimony, namely, that following a considered and reasoned
    analysis of the complainants testimony, she accepted it.

[29]

I
    rely on para. 134 of the trial judges reasons, in particular, for this view. 
    In para. 134, after acknowledging the need to examine the evidence in
    accordance with the framework laid down in
W. (D.)
, the trial judge set
    out para. 53 of this courts decision in
R. v. D. (J.J.R.)
(2006), 215
    C.C.C. (3d) 252.  In para. 53 of
D. (J.J.R.)
, Doherty J.A., writing for
    the court, states:

The trial judge rejected totally the appellants denial because
    stacked beside [the complainants] evidence and the evidence concerning the
    diary, the appellants evidence, despite the absence of any obvious flaws in
    it, did not leave the trial judge with a reasonable doubt.  An outright
    rejection of an accuseds evidence based on a considered and reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting credible
    evidence is as much an explanation for the rejection of an accuseds evidence
    as is a rejection based on a problem identified with the way the accused
    testified or the substance of the accuseds evidence.

[30]

I
    turn next to the appellants complaint that the trial judge unfairly rejected his
    testimony about Mothers Day 2010 because it lacked detail.

[31]

In
    para. 140 of her reasons, the trial judge stated that the appellant had
    testified to the effect that he had a clear recollection of Mothers Day
    2010.  She then found that he did not have such a recollection.

[32]

I
    agree that the trial judge overstated the appellants testimony when she said
    that he claimed to have a clear recollection of the day.  When the appellant
    was asked if he could remember in and around Mothers Day 2010, he responded,
    I would say I would yes.

[33]

However,
    when para. 140 is read in context, I cannot agree that the trial judge placed
    undue weight on the lack of detail in the appellants recollection of Mothers
    Day 2010.  Instead, it is apparent that the trial judge rejected his testimony
    about the Mothers Day 2010 incident because the appellant tried to suggest
    that he had no opportunity to commit the offence, and his vague testimony about
    the events on Mothers Day 2010 did not allay her concerns in that regard.

[34]

I
    will now deal briefly with
R. v. Norman
(1993), 87 C.C.C. (3d) 153 (Ont.
    C.A.), as the appellant relied on it for this ground of appeal.  In my view,
Norman
does not

assist the appellant.  The facts and the trial judges
    treatment of the evidence in
Norman
are quite different from the present
    case.

[35]

In
Norman
, the complainant alleged that she had been sexually assaulted at
    the age of thirteen, at a church corn roast. She claimed to have repressed her
    memories of the assault, only gradually remembering the incident some 15 years
    later, after extensive therapy.

[36]

By
    the time of trial, the appellant had only a vague memory of the corn roast which
    had taken place 18 years earlier.  He categorically denied that the assault had
    taken place.  In addition, he denied ever having owned the clothes the
    complainant claimed he wore; led evidence from his doctor that, contrary to the
    complainants testimony, he did not have freckles on his penis nor had he ever
    been treated for a rash; demonstrated that prior to the date of the corn roast
    his hand had been disfigured by an amputation, which the complainant failed to
    mention despite describing his large hands; and led uncontradicted evidence
    that the car he owned at the time of the alleged assault was a different colour
    from that described by the complainant and her friend.

[37]

The
    trial judge ignored some of the appellants evidence and rejected other parts
    of it, saying that it was inconsistent and selective.  He also held the
    appellant and the complainant to different standards in their ability to recall
    long-ago events. He failed to appreciate that the appellants memories from
    what he claimed was an unremarkable event 18 years earlier were likely to be
    vague, and did not assess the appellants evidence in that light.

[38]

Moreover,
    the trial judge failed to appreciate a significant aspect of the expert
    evidence on recovered memories, which was that witnesses with recovered
    memories honestly believe what they are saying, whether or not it is accurate.

[39]

On
    appeal, this court overturned the conviction.  It found that the trial judge
    erred in relying principally on the demeanour of the complainant and her friend
    without critically examining their evidence. There was no attempt to reconcile
    inherent discrepancies in both of their testimonies or to resolve the
    significant contradictions between their evidence and that of the few
    independent witnesses (p. 172).

[40]

This
    court also criticized the trial judges treatment of the evidence, stating, at
    pp. 172-73, that he had failed to give effect to the presumption of
    innocence:

An innocent man is unlikely to have a detailed memory of
    distant uneventful occasions. Yet, unfortunately, the appellants inability to
    recall the minutiae of the corn roast appears to have been interpreted by the
    trial judge as selective recall. The appellant was ultimately called upon to
    justify his version of events, while his accusers inconsistencies were excused
    as being insignificant when related to the charges. Through this sort of
    reasoning, the trial judge effectively shifted the onus onto the accused to
    prove his innocence.

[41]

In
    the present case, however, the trial took place some two years after the
    incidents in question, not 18 years afterwards as in
Norman
.  And, there
    is nothing in the appellants testimony akin to that given by the appellant in
Norman
,
    in addition to his blanket denials.  Moreover, as I have explained, the trial
    judge in this case did not reject the appellants testimony because of a lack
    of detail but for a combination of reasons, including his minimization of both his
    opportunity to commit the offences and the complainants odd behaviour.

[42]

Furthermore,
    unlike in
Norman
, as discussed more fully below, the trial judge in this
    case

addressed the inconsistencies in the complainants evidence. She
    did not hold the appellant and the complainant to different standards.

[43]

For
    these reasons, I do not accept that the trial judge rejected the appellants
    testimony due to a lack of detail.

Alleged Reversal of the
    Burden of Proof

[44]

The
    second branch of the appellants submission on this ground of appeal is that
    the trial judge reversed the burden of proof.  In support of this submission,
    the appellant points to the words did not satisfactorily answer the
    allegations in para. 151 of the trial judges reasons.  Paragraph 151 reads as
    follows:

The Court does not believe [the appellant] to the effect that
    he did not sexually assault [the complainant] during the relevant time.  His
    answer to many of the questions, to the effect that it never happened
did
    not satisfactorily answer the allegations
, given their repetitive and
    generic nature. [Emphasis added.]

[45]

The
    impugned words in para. 151 are part of one sentence in a 39-page judgment.  It
    is trite law that a trial judges reasons are not to be dissected into small
    pieces and each piece examined in isolation.  Rather, the reasons must be read
    as a whole: see
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    p. 204.  When her reasons are read as a whole, it is apparent that the impugned
    words are the trial judges attempt to express why she did not find the
    appellants denials believable and do not constitute a reversal of the burden
    of proof.

[46]

As
    previously indicated, the trial judge expressly directed herself to, and
    structured her analysis in accordance with, the
W. (D.)
principles.  She
    gave cogent reasons for accepting the complainants evidence and rejecting that
    of the appellant.  The trial judge also explicitly addressed whether the defence
    evidence as a whole raised a reasonable doubt.  Further, she expressly
    considered whether, on the whole of the evidence, the Crown had proven the
    allegations beyond a reasonable doubt.  In short, the reasons demonstrate that
    the trial judge was well aware that the burden of proof lay with the Crown and not
    the appellant.

[47]

Accordingly,
    I would reject this ground of appeal.

2.     Did the trial judge misapprehend the
    appellants evidence regarding the complainants odd behaviour?

[48]

It
    will be recalled that one of the reasons given by the trial judge for rejecting
    the appellants evidence was her finding that he had denied and then minimized
    [the complainants] odd behaviour in the spring and fall of 2011.

[49]

The
    appellant submits that he neither denied nor minimized the complainants odd behaviour
    in 2011, and that the trial judge misapprehended his evidence in so finding.  He
    contends that the trial judges misapprehension of his evidence on this matter
    was central to her credibility findings and, in particular, to her rejection of
    his evidence.  Because of this erroneous view of the substance of the
    appellants testimony about the complainants odd behaviour, the appellant
    maintains that the basis for the trial judges credibility findings is
    destroyed.

[50]

I
    see nothing in this submission.  The trial judge was in the best position to
    assess the appellants evidence on the matter of the complainants odd behaviour
    in 2011 and the findings she made were fully available on the record.

[51]

While
    the appellant did acknowledge some of the complainants odd behaviour, it was
    open to the trial judge to find that he initially denied it.  For example, when
    testifying in chief, the appellant described the changes in the complainants
    behaviour during the relevant time period as her becoming a bit more
    argumentative and not content.  He denied noticing a change in the
    relationship between the complainant and CM, beginning in 2010, and when asked
    if he would ever characterize the complainants relationship with CM as weird,
    he responded No never.

[52]

Further,
    it was fully open to the trial judge to find that even when the appellant did
    acknowledge the complainants odd behaviour, he minimized it.  In paras. 155-56
    of her reasons, the trial judge gives examples of this by reference to the
    appellants testimony about the intensity of the complainants attachment to
    him at the relevant time.  To this, I would add two additional examples of the
    appellant minimizing the complainants odd behaviour.

[53]

The
    first example relates to the complainants practice, during the relevant time period,
    of leaving the house and sitting in the appellants truck at around 5:30 a.m.,
    even on days that she was not going to ride to work with him.  In cross-examination,
    the appellant expressed the view that the strangeness of the complainants
    behaviour, on days when he was going to give her a ride to work, was that she
    didnt just wait in the house with him and then walk to the truck together. 
    And, on days when he was not going to drive her to work, the appellant said
    that the strangest aspect of her behaviour was not that she waited for him in
    the truck, but that she didnt wait for him in the house.

[54]

The
    second example relates to the complainants behaviour toward CM in the relevant
    time period.  In response to the suggestion in cross-examination that during
    that time, the complainant wasnt getting along very well with [CM], the
    appellant replied Well I dont believe that.  When asked if the complainant
    was fighting more and more with CM and the relationship between them getting
    progressively more argumentative, he responded I guess they have discussions.

[55]

Accordingly,
    as I have said, I see nothing in this ground of appeal.

3.       Did the trial judge err in finding that inadmissible
    and neutral evidence corroborated the complainants testimony?

[56]

The
    appellant submits that the trial judge made two further errors of law, both of
    which affected her assessment of the complainants credibility.

[57]

First,
    the appellant contends that the trial judge used the out of court statements as
    corroboration for the complainants account of the Mothers Day 2010 incident. 
    In advancing this argument, he relies in particular on paras. 145 and 146 of
    the trial judges reasons.  Those paragraphs read as follows:

[145]  The disclosure was made to police by [ET] and [SR],
    without [the complainants] knowledge.  The Mothers Day incident was
    divulged to Officer Limlaw while the two were sitting in his cruiser on
    December 6.  [The complainant] did not wish to give a statement.

[146]  The Court accepts [the complainants] version of events
    with respect to this event.  The other Crown witnesses corroborated [the
    complainants] testimony to varying degrees, and with respect to varying
    portions of it.

[58]

The
    appellant says that the finding of corroboration referred to in para. 146 is a
    legal error because the complainants prior out of court statements could not,
    in law, be used to corroborate her trial testimony.

[59]

Second,
    the appellant says that the fact the complainant was reluctant to disclose was neutral,
    because it was equally consistent with either the truth or falsity of her
    allegations. He submits that the trial judge erred by using the evidence of the
    other Crown witnesses confirming the complainants reluctance to disclose her allegations
    as evidence corroborating the complainants testimony.

[60]

In
    my view, the impugned out of court statements were admissible. Furthermore,
    despite the trial judges use of the word corroborate in her reasons, she did
    not impermissibly use the out of court statements as corroborative of the
    complainants testimony.


Admission of the Out of Court
    Statements

[61]

The
    appellant concedes that some of the complainants out of court statements were
    admitted as narrative.  He complains, however, that the text messages were
    unnecessarily admitted because the trial judge did not need the content of the
    texts to understand how events had unfolded.

[62]

I
    see no error in the admission of the out of court statements.

[63]

Prior
    consistent statements are generally inadmissible.  However, they may be admissible
    as part of the narrative.  If so admitted, the out of court statements are
    not to be used for the truth of their contents, but to help the trier of fact
    understand how a complainants story was initially disclosed.  While out of
    court statements cannot be used to confirm the truthfulness of the sworn
    allegations, narrative evidence may be used to show the fact and timing of a
    complaint, which may then assist the trier of fact in the assessment of
    truthfulness or credibility:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, at paras. 36-37.

[64]

Out
    of court statements may also be admitted to rebut an allegation of recent fabrication. 
    Admission on the basis of this exception does not require that an allegation of
    recent fabrication has been expressly made.  It is sufficient if the
    circumstances of the case reveal it to be the apparent position of the opposing
    party:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[65]

In
    this case, the Crown called several witnesses and entered as an exhibit the
    text messages in which the complainant first disclosed the abuse to ET.  The
    purpose of this evidence was to explain the narrative of the disclosure
    process.  It should be noted that the text messages were admitted at trial on
    consent and that the trial Crown explicitly stated that the text messages were
not
being used as prior consistent statements.

[66]

Further,
    the trial Crown was careful to not ask the other Crown witnesses about the
    content of their conversations with the complainant.  It was defence counsel at
    trial who asked those witnesses about the content of those conversations because
    the defence wanted to rely on inconsistencies in the complainants out of court
    statements and text messages to undermine the complainants credibility.

[67]

Given
    the apparent defence position that the complainant fabricated the allegations
    because she was infatuated with the appellant, the circumstances surrounding
    disclosure took on heightened importance.  In any event, the out of court
    statements were admissible as part of the narrative about the disclosure
    process.

[68]

Furthermore,
    when cross-examining the complainant at trial, defence counsel put to the
    complainant that she made up the allegations after Alicia Michaud told the
    complainant that her sister would be returning to the home of the appellant and
    CM but she would not.  In light of this cross-examination, it may have been open
    to the Crown to rely on the out of court statements to show that the
    complainant had disclosed the allegations prior to that time  that is, to
    rebut a possible defence allegation of recent fabrication.

The Trial Judges Use of
    the Out of Court Statements

[69]

I
    do not read para. 146 in the manner urged by the appellant. In my view, the
    trial judge did not use the out of court statements to corroborate the
    complainants account of the Mothers Day incident, and para. 146 does not say
    as much.

[70]

For
    convenience, para. 146 is set out again now.

[146]  The Court accepts [the complainants] version of events
    with respect to this event.  The other Crown witnesses corroborated [the
    complainants] testimony to varying degrees, and with respect to varying
    portions of it.

[71]

I
    accept the appellants submission that in the first sentence of para. 146, when
    the trial judge says that she accepts the complainants version of events,
    she is referring to the complainants version of what took place during the
    Mothers Day 2010 incident.

[72]

However,
    I do not accept that in the second sentence of para. 146, the trial judge is
    saying that she was using the out of court statements to corroborate the
    complainants testimony about that incident.  In the second sentence, there is no
    mention of the out of court statements.  Rather, the trial judge says that
    [t]he other Crown witnesses corroborated [the complainants] testimony in
    varying degrees and on various points. It is in the following paragraph that
    the trial judge mentions the evidence of the complainants friends and Officer
    Limlaw about the complainants reluctance to disclose her allegations to the
    police.

[73]

Clearly,
    the evidence of these witnesses could not corroborate the complainants
    testimony about the Mothers Day incident. If the appellant is suggesting that
    the trial judge put their evidence to this use, I disagree.

[74]

In
Dinardo
,

the Supreme Court stated, at para. 37,
    that while prior consistent statements admitted as part of the narrative must
    not be used to confirm the truthfulness of an allegation, they may be used f
or the permissible purpose of showing the fact and
    timing of a complaint, which may then
assist the trier of fact in the
    assessment
of truthfulness or credibility" (emphasis in original,
    citations omitted).
Dinardo
cites with approval the decision of this
    court in
R. v. C. (G.)
, [2006] O.J. No. 2245, itself citing
R.
    v. F. (J.E.)
(1993), 85 C.C.C. (3d) 457 (Ont. C.A.)
, where it was noted that prior consistent statements may help triers of
    fact to understand 
the sequence of events from the alleged offence to
    the prosecution so that they can understand the conduct of the complainant and
    assess her truthfulness (
Dinardo
, at para. 38).

[75]

The
    trial judge relied on the out of court statements for the limited purpose
    allowed by
Dinardo
 that is, as a part of the sequence of events so
    that she could understand the complainants conduct and assess her
    truthfulness.  I understand the trial judge to mean, in the second sentence of
    para. 146, that the evidence given by the complainants friends and Officer
    Limlaw about the complainants attitude towards disclosure and conduct during
    the disclosure period was consistent with the complainants testimony that she
    was reluctant to disclose.  Paragraphs 170-73 of the reasons make it clear that
    this is what the trial judge intended to express in the second sentence of
    para. 146.

[76]

Paragraphs
    170-73 read as follows:

[170]  [The complainant] testified that she did not want to
    disclose, as to do so would not only affect [the appellant] and his reputation,
    but also would affect her status in the only family which she had known. 
    Sadly, it seems that this fear has come true.

[171]  [The complainant] was a credible witness, whose
    testimony was detailed and articulate.  Her evidence was corroborated in varying
    degrees by the other Crown witnesses.

[172]  [ET] and [SR] both spoke of their friendship with [the
    complainant], somewhat in contrast to the evidence presented by defence.  Their
    testimony corroborated the fact that [the complainant] was reluctant to
    disclose the sexual allegations against [the appellant].

[173]  Officer Limlaw confirmed [the complainants] disclosure
    with respect to the Mothers Day incident.  He also confirmed her refusal to
    provide a statement.

[77]

I
    also disagree with the appellants submission that the trial judge used the
    neutral fact of the complainants reluctance to disclose for the impermissible
    purpose of corroborating her allegations.

[78]

The
    defence had urged the trial judge to conclude that the complainants reluctance
    came about because she had fabricated her allegations.  The Crown argued that the
    complainants reluctance was because she did not want to destroy her family
    life. The trial judge accepted the Crowns argument and found that the
    complainant did not want to disclose what had happened because it would imperil
    the only family life she had ever known.  In drawing this conclusion, the trial
    judge was permitted to use other witnesses evidence showing that the
    complainant had been reluctant to come forward, for the reasons discussed above.

[79]

Having
    said this, I find problematic the trial judges use of the word corroborate
    in this part of her reasons. I would reiterate the caution that Pepall J.A.
    recently made, on behalf of this court, in
R. v. B. (D),
2013 ONCA 578,
    310 O.A.C. 294, at para. 38: in discussing prior consistent statements, judges
    must be cautious when using words such as corroborate, confirm, bolster,
    strengthen or support to ensure that they do not imply that the evidence is
    being used for an impermissible purpose.

[80]

Nonetheless,
    I am satisfied that the trial judge did not err in her use of the out of court
    statements.  Accordingly, I would not give effect to this ground of appeal.

4.       Did the trial judge misapprehend
    inconsistencies in the complainants evidence?

[81]

The
    appellant submits that the trial judge failed to grapple with important
    inconsistencies in the complainants evidence.  Specifically, he contends that
    the trial judge failed to adequately address the inconsistencies between the
    complainants trial testimony and:

1.

certain of the
    complainants statements to her friends, ET and SR;

2.

Officer Limlaws
    account of the complainants discussion with him; and

3.

her sworn
    statement to the police.

[82]

As
    I will explain, I see no basis on which to interfere with the trial judges
    findings of credibility.  She was alive to each of the areas of inconsistency and
    other alleged frailties in the complainants testimony raised in the defence
    submissions.  She took them into account when assessing the complainants
    reliability and credibility.  The trial judge provided an explanation for some
    and dismissed the others as being peripheral and not affecting the overall
    reliability of the complainants testimony.

[83]

A
    trial judges findings on credibility are entitled to considerable deference by
    an appellate court.  As this court said at para. 66 of
R. v. Wadforth
, 2009
    ONCA 716, 247 C.C.C. (3d) 466:

Resolution of credibility controversies is the daily fare of
    trial judges.  Assessment of credibility is a difficult and delicate subject,
    often defying precise and complete verbalization.  At bottom, belief of one
    witness and disbelief of another, in general or on a specific issue, is an
    alloy of factors, not a purely intellectual exercise.  The unique position of
    trial judges to see and hear witnesses, and the inestimable advantage they
    enjoy in the result in assessing witnesses credibility and the reliability of
    their evidence, cannot be squandered by unrealistic expectations of scientific
    precision in language used to describe the complex coalescence of impressions
    that effuse after watching and listening to witnesses and attempting to
    reconcile their renditions of critical events.  [Citations omitted.]

[84]

In
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11, the
    Supreme Court recently reiterated that credibility determinations by a trial
    judge attract a high degree of deference.  It quoted from para. 26 of
Dinardo
,
    in which Charron J. explained:

Where a case turns largely on determinations of credibility,
    the sufficiency of reasons should be considered in light of the deference
    afforded to trial judges on credibility findings.  Rarely will the deficiencies
    in the trial judges credibility analysis, as expressed in the reasons for judgment,
    merit intervention on appeal.

The Complainants
    Statements to her Friends


[85]

The
    complainant told her friends that she had sexual contact with the appellant,
    among other times, on Boxing Day and during family vacations.  However, at
    trial, the complainant denied that sexual conduct took place at those times.

[86]

The
    complainant also told ET that her sexual contact with the appellant ended in
    July
[1]
,
    whereas at trial she testified that it ended in January of 2011.

[87]

The
    trial judge recognized that the complainants statements to her friends about sexual
    acts taking place on Boxing Day and in hotels during family vacations were inconsistent
    with her trial evidence.  However, the trial judge found that this was a peripheral
    matter within the context of the trial, and does not affect the overall
    reliability of [the complainants] evidence.  She stated that she would not
    place much weight on these inconsistencies.

[88]

As
    for the complainants inconsistent reports of when the appellant ended the
    sexual relationship, the trial judge found that it was not sufficiently serious
    so as to affect the complainants reliability.

[89]

It
    was open to the trial judge, having considered the inconsistencies in the
    complainants testimony, to find that they did not affect her assessment of the
    complainants credibility and reliability. I see no error in the trial judges
    treatment of these inconsistencies.

The Complainants
    Statement to Officer Limlaw

[90]

At
    trial, Officer Limlaw testified that the complainant told him that the morning
    after the appellant first touched her breast, she awoke wondering whether the
    touching had just been a dream.  He also testified that the complainant told
    him that she had feelings for the appellant, which Officer Limlaw took to
    mean sexual feelings.  At trial, however, the complainant denied making the
    dream comment to Officer Limlaw and also denied telling him that she had sexual
    feelings for the appellant.

[91]

The
    trial judge accepted Officer Limlaws testimony.  The appellant submits that
    having accepted that evidence, the trial judge must have found that the
    complainant either lied or was mistaken when she testified at trial and that the
    trial judge should have considered this when assessing the complainants credibility.

[92]

I
    see nothing in this submission.

[93]

The
    trial judge was fully alive to the inconsistencies in question and gave cogent
    reasons for why those inconsistencies did not cause her to doubt the
    complainants credibility.  At para. 192 of her reasons, the trial judge
    rejected the defence submission that the inconsistencies between the
    complainants trial testimony and the statements that Officer Limlaw attributed
    to her were stunning.  She found that the inconsistencies arose from the
    complainants reluctance to give a statement to the police and her refusal to
    make complete disclosure at that time.  The trial judge attributed the
    inconsistency in the complainants account of her feelings for the appellant to
    a difference in the way she viewed her feelings over time.   It was open to the
    trial judge to reach this conclusion.

The Complainants
    Statement to the Police

[94]

The
    complainants in-court testimony about the first time that she and the
    appellant had intercourse differed from her sworn police statement.  Although
    the alleged intercourse fell outside the scope of the Information, the trial
    judge relied on the detail that the complainant gave when describing this event
    as bolstering the complainants credibility.  The appellant says that the trial
    judge failed to address these inconsistencies and that such a failure was
    material to her credibility determination.

[95]

When
    these inconsistencies were drawn to the complainants attention in
    cross-examination, she reacted with a profane outburst.

[96]

The
    trial judge was aware of the inconsistencies and the change in the complainants
    demeanour when cross-examined about them.  In her reasons, she noted that for
    the most part, the complainant presented as a calm, articulate witness but
    that she had become agitated during cross-examination and used profanity.  The
    trial judge stated that the complainants outburst had to be assessed within
    the context of the trial and considering the fact that the complainant had testified
    over a period of four days.  After observing that the outburst was brief and
    certainly inappropriate, the trial judge found that it did not negate the
    complainants reliability and credibility.  That finding was open to her.

DISPOSITION

[97]

Accordingly,
    I would dismiss the appeal.

Released: November 7, 2014 (E.E.G.)

E.E. Gillese
    J.A.

I
    agree. E.A. Cronk J.A.

I
    agree. M. Tulloch J.A.





[1]
ET believed that the complainant meant July 2011 but was unsure as she might
    have meant 2010.


