



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    the complainant or a witness shall not be published in any document or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. T.M., 2014 ONCA 854

DATE: 20141201

DOCKET: C55875

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.M.

Appellant

Michael Lacy and Bradley Greenshields, for the appellant

Jocelyn Speyer, for the respondent

Heard: March 18, 2014

On appeal from the convictions entered on February 13,
    2012, by Justice
Jean-Gilles
Lebel of the Ontario Court
    of Justice.

Laskin
    J.A.:

A.

Introduction

[1]

After a trial in the Ontario Court of Justice, T.M. was convicted of six
    counts of historical sexual abuse  five counts against his step-daughter S.M.,
    and one count against his biological daughter J.M. He was sentenced to four
    years in prison. He appeals his convictions.

[2]

At the time of trial in late 2011, S.M. was 28 and J.M. was 26. S.M.
    testified that the appellant sexually assaulted her hundreds of times when she
    was between the ages of eight and 25. J.M. testified that the appellant
    sexually assaulted her on one occasion when she 18. She also testified that she
    observed sexual interaction between the appellant and S.M. on three occasions. The
    appellant testified and denied that he had ever sexually assaulted his
    daughters.

[3]

Although the appellants wife, W.M., and one of their sons testified for
    the defence, this case turned on the trial judges assessment of the
    credibility of the two complainants and the appellant. The trial judge accepted
    the complainants evidence and gave reasons why he found each of them credible.
    He rejected the appellants denial and found it did not raise a reasonable
    doubt.

[4]

The appellant raises three grounds of appeal. Each ground challenges the
    trial judges credibility findings:

·

First, the trial judge erroneously found that the appellant of
    his own initiative, without prompting by the Crown Attorney, claimed J.M. had
    manipulated S.M. to falsely accuse him.

·

Second, the trial judge erred by failing to address material
    inconsistencies between the accounts of the two complainants.

·

Third, the trial judge erred by relying on the appellants
    demeanour in the courtroom during the complainants testimony to reject his
    evidence.

[5]

The appellant submits that these three errors caused a miscarriage of
    justice and warrant a new trial.

[6]

To put the appellants grounds of appeal in context, I briefly review
    the familys lifestyle, the way T.M. and W.M. raised their children, each of
    the complainants evidence of sexual abuse, and the disclosure of the abuse.

B.

Background

(1)

The familys lifestyle

[7]

W.M. married the appellant in 1985. She brought two daughters to the
    marriage, one who had died by the time of trial, and the complainant S.M. When
    W.M. married the appellant, S.M. was two years old, and he was the only father
    she ever knew. W.M. and the appellant had eight children together, six boys and
    two girls, one of whom was the complainant J.M.

[8]

Until the year 2000, the family moved frequently. Between 1991 and 1996,
    they lived in various places in British Columbia and Alberta. Between 1996 and
    2000, they lived on campgrounds in the North Bay, Ontario, area and in several
    communities in British Columbia and Alberta. Then in 2000, they moved to a hundred-acre
    farm in Golden Valley, East Mills Township, in Ontario, where they remained
    until the time of trial.

[9]

The appellant formerly belonged to a religious organization known at one
    time as Children of God and then as Family International. S.M. said that
    the organization emphasized women bearing and rearing children. She also
    testified that the organization was most famous for [its] sexual beliefs; it
    believed [t]hat it was okay to have sex with anyone. J.M. described Family
    International as a hippie group,  there was a lot of belief in free love, a
    lot of belief of staying outside of what they called the system.

[10]

The
    appellant testified that he ended his formal association with Family
    International in 1983, two years before he married W.M., though he continued to
    receive mailings from the group until 1997. He denied that his children were
    taught that having sex with him was acceptable or normal. He testified that
    his children were taught Christian values from the Bible.

(2)

The childrens upbringing

[11]

The
    complainants told of an isolated, repressed childhood, separated from the
    outside world. The trial judge made numerous findings of fact that supported
    their accounts. These findings included:

·

The appellant was the boss of the family. He had the final say on
    matters of discipline and behaviour.

·

The Familys beliefs emphasized having many children and teaching
    them to obey. [W]hen the [M.] children disobeyed, corporal punishment would be
    meted out.

·

Corporal punishment consisted of spanking by the use of the hand,
    belt or fly swatter.

·

The children were home schooled and subjected to Family
    International readings for hours each day.

·

The family led a sheltered life with very little socializing. In
    fact, there was no evidence of family gatherings or friends attending the M.
    residence other than other Family members.

·

The [M.] children were not allowed to speak freely or express
    contrary views or opinions. Obedience was paramount.

(3)

The complainants evidence of the appellants sexual abuse

(a)

S.M.s evidence

[12]

S.M.
    testified about the appellants repeated abuse of her in 1991-92, when she was
    about eight years old and living in Alberta, and in 1992-96, when the family
    was living in British Columbia. The trial judge considered this evidence of
    sexual abuse outside Ontario basically for context.

[13]

The
    sexual abuse that is the subject of the counts in the indictment began in 1996,
    when S.M. was 13 years old and the family was living in North Bay. S.M.
    testified that the abuse consisted of blow jobs and hand jobs. Occasionally
    the appellant would fondle her breasts or perform oral sex on her. He did not
    try to penetrate her after puberty.

[14]

According
    to S.M., the sexual abuse continued, and became more frequent, after the family
    moved to their farm in the Golden Valley. Again the abuse consisted of oral and
    manual stimulation, and took place [a]bout weekly. The appellants sexual abuse
    ended when S.M. left the home at the age of 25.

(b)

J.M.s evidence

[15]

J.M.
    testified about one incident of sexual abuse when she was 18. She was in the
    appellants bedroom. He pulled her onto the bed and tried to spread her legs. He
    then mounted her and moved back and forth on top of her. She testified, I
    could feel him, like, getting really hard and he started, like, digging his
    pelvis into me and was just, like, holding me. J.M. told the appellant, I
    think I should go call mom now. The appellant told her to be quiet and he
    stopped. J.M. went downstairs but did not tell anyone what had happened.

(c)

J.M.s observations of the appellants sexual abuse of S.M.

[16]

J.M.
    recounted three incidents when she observed the appellant sexually abusing S.M.
    The first incident took place on a campground in North Bay. S.M. and J.M.
    shared a tent. The appellant lay between them and cuddled. This was not
    unusual: cuddling, hugging, kissing and touching were common practices in the
    family. But on this occasion, J.M. saw the appellant put his hand up S.M.s
    shirt in her breast area or down the back of her pants. J.M. felt uncomfortable
    about what she had seen so she got up and left. Later she asked S.M., [D]o you
    like Pas hugs? S.M. replied, Humph. Whatever, and J.M. did not press the
    matter.

[17]

The
    second incident also occurred in North Bay. The family slept in a trailer. J.M.
    and S.M. shared a bed at the front of the trailer. The appellant came over to
    cuddle with S.M. J.M. fell asleep, but she woke up because she felt a knee
    bumping her and the trailer moving. She saw S.M. in a sleeping bag and the
    appellant on top of her. His hands were around her and her hands were around
    him. The appellant was red-faced and moaning. He told J.M. to roll over and
    face the wall. She testified, [T]o my shame, thats exactly what I did.

[18]

The
    next morning, J.M. asked S.M. about what had happened. S.M. replied, Dont
    talk about it. J.M. told S.M., [T]his is not right, but she did not pursue
    the matter.

[19]

The
    third incident took place when the family lived in a log house in the Golden
    Valley. One Saturday night in 2002 or 2003, J.M. walked into the living room
    and saw the appellant lying on a couch and S.M. leaning over him, at his
    waistline. Her head was going up and down, and her hands were in front of her. The
    appellant and S.M. scurried apart, and then the appellant rearranged his pants.
    Later J.M. asked S.M., [W]hats going on? S.M. replied, Nothing or Whatever.

(4)

Disclosure

[20]

The
    complainants first disclosed the abuse in 2010, after they had left the home
    and each was living in Alberta.

[21]

J.M.
    was the first to leave the home. In May 2006, she and S.M. were scheduled to go
    to Sudbury to write their high school equivalency examinations. The appellant
    was to drive them, but the day before he claimed that his vehicles werent in
    good shape and that he could not make the trip. J.M. decided to go anyway. She
    called a taxi to take her to the bus station in North Bay, told the cab company
    to meet her on the road, and hid along the highway until the taxi came. When
    she reached the bus station, the appellant had her paged to take a phone call. He
    told her the devil was out to get her and that she should return home. However,
    J.M. continued to Sudbury, wrote her exams, got a job and began living on her
    own. In 2007, she moved to Calgary and, in late 2009, to Fort McMurray.

[22]

S.M.
    left her family in May 2008, a few weeks after her 25th birthday. She join[ed]
    a missionary commune that [her] parents had been part of and understood fairly
    well. She stayed there for six months and then moved to Calgary because J.M.
    was there. She got a job and was still working and living in Calgary at the
    time of trial.

[23]

In
    the fall of 2010, J.M. telephoned S.M. and told her that she was not being
    allowed to speak with her younger siblings. S.M. then told her about the
    appellants abuse, and J.M. became worried for her younger sister, who was
    still at home. J.M. then decided to call a childrens services agency. That
    agency contacted the police, who then contacted J.M.

[24]

S.M.,
    who was attending college to obtain a certificate as a teachers assistant,
    waited until the winter break from school before she made a video statement to
    the police. She described her motivation for disclosing the abuse as [t]o help
    the kids.

[25]

S.M.
    also explained why she had not told anyone earlier about the appellants sexual
    abuse. She described an array of conflicted feelings. The appellant had made
    her feel special and mature for her age. On one occasion, he told her that if
    she wanted the behaviour to continue, she would have to be quiet and not tell
    anyone or he would go to jail; although she did not want his abuse to continue,
    she did not want him to go to jail. As she grew older, she felt she could not
    tell anyone because she would be blamed and her mother would be angry and
    jealous. And she felt ashamed.

C.

Analysis

[26]

The
    appellants grounds of appeal are directed at the trial judges credibility
    assessment. Before discussing these grounds, I set out the trial judges
    credibility findings.

[27]

The
    trial judge found that S.M. and J.M. were very credible and trustworthy witnesses
    despite minor inconsistencies in their evidence.

[28]

Of
    S.M.s testimony, the trial judge said:

The evidence of [S.M.]: generally speaking, this witness was
    responsive to questions put to her in-Chief and in cross-examination. I found
    her to be candid and with a very good ability to recall events. She responded
    well to fair, yet vigorous, questions during cross-examination. I did not
    observe any vindictiveness directed towards the defendant from this witness,
    nor did she attempt to distort the family dynamics. Ms. [M.] was in the stand
    for a long period of time. Eventually, ones true character comes to light in
    such circumstances. She did not strike me as the type of person who would sit
    with someone and fabricate what she experienced, nor do I believe that she
    could be manipulated by anyone in a vendetta against her stepfather. To the
    contrary; she did not exhibit animosity vis a vis the rules and regulations of
    the household. To this day, she follows the core values that she was taught.

[29]

And
    of J.M.s testimony, he said:

[J.M.], I found, gave her evidence in [a] straightforward
    manner. She was responsive to all questions put to her. She was succinct and to
    the point. She related the positive and the negative aspects of her upbringing.
    An evil, manipulative person surely would have embellished the sexual abuse
    perpetrated against her. She did not. She related one incident between herself
    and the defendant, when he rubbed himself against her, and that was it.

[30]

On
    the other hand, the trial judge concluded that he did not believe the appellant
    and that his evidence did not raise a reasonable doubt. He found that on
    cross-examination, the appellant lacked candour and was flippant, argumentative
    and unresponsive. He also found that W.M. and their son were not credible and
    trustworthy witnesses.

[31]

Of
    course, an appellate court gives significant deference to a trial judges
    credibility findings. The overriding question on this appeal is whether
    anything in the trial judges reasons or in the conduct of the trial gives rise
    to a reversible error in his findings.

1.       Did
    the trial judge erroneously find that the appellant of his own initiative
    claimed J.M. had manipulated S.M. to falsely accuse him?

[32]

This
    ground of appeal has several components. In substance, the appellant contends:

·

The trial judge misapprehended the evidence when he found that
    the appellant of his own volition or of his own initiative put forward the
    theory that J.M. had manipulated S.M. to falsely accuse him of sexual abuse.

·

Instead, it was the Crown who, in cross-examining the appellant,
    initially and repeatedly asked the appellant to speculate why the complainants
    would falsely accuse him. And, the trial judge failed to curtail this
    impermissible line of questioning.

·

The trial judge then erroneously relied on this improper
    cross-examination and the appellants failure to provide an explanation why the
    complainants would falsely accuse him to find the complainants credible and the
    appellant guilty. In doing so, the trial judge artificially bolstered the
    complainants credibility and reversed the burden of proof.

[33]

I
    do not accept the appellants contention, or indeed any of its components. The
    passage in the trial judges reasons that the appellant complains of is as
    follows:

During cross-examination, of his own initiative, without
    prompting by the Crown Attorney, without being asked any questions about [S.M.]
    and [J.M.], [the appellant] stated that he firmly and steadfastly believes that
    [S.M.] is being snowploughed by [J.M.], this whole thing is a plot against
    him. He believes that [J.M.] manipulated [S.M.] because she had a grudge
    against him.

[34]

It
    seems to me the trial judges comment was fair. Before the Crown began his
    cross-examination of the appellant, the defence had put forward the position
    that the complainants had contrived or fabricated their allegations. For
    example, toward the end of the appellants examination-in-chief, he was asked
    by his counsel: And you heard [J.M. indicate] that you had sexual contact with
    [S.M.] while [J.M.] was in the same bed in the trailer?  Any comment on that?
    The appellant replied, Its totally false, totally ridiculous and totally made
    up.

[35]

Then,
    before the appellants examination-in-chief concluded, the following exchange
    took place:

Q.      Now when, when [J.M.] left, any contact with her after
    she left?

A.      Yeah, she called lots of times, always phoning, mostly
    at night but, you know, and she called right up til the last couple of months
    before she contacted the [Childrens Aid Society] and started this campaign
    against us.

Q.      In all the evidence you heard about sexual abuse and
    harassment, sexual abuse from [J.M.] and from [S.M.], is there a scintilla of
    truth to any of it?

A.      No.

[36]

The
    appellants answers show he believed that the complainants allegations were
    contrived and that J.M. had orchestrated the false allegations. The Crown was
    certainly entitled to cross-examine in these areas. And defence counsel at
    trial (not counsel on appeal) evidently agreed because he did not object to the
    Crowns cross-examination. The Crown cross-examined the appellant as follows:

Q.      I see. You believe this is a plot by [J.M.] and [S.M.]?

A.      Yes, Im being snow ploughed by [J.M.].

Q.      Why?

A.      Its a lie.

Q.      You got along with her?

A.      I got along with her but she was always building up
    resentment and before they left home they were developing real bad habit of
    always criticizing and looking down at us.

Q.      When you say they, both of them?

A.      Yes.

Q.      I see, both [S.M.] and [J.M.]?

A.      Yeah, like it was as if we were real dummies and
    embarrassment and always putting us down.



Q.      Do you believe that [J.M.] has some kind of control
    over [S.M.]?

A.      Control?

Q.      Yeah?

A.      I dont know if youd use the word control but she
    mighty influences her a lot.

Q.      Manipulates her?

A.      Yes.

Q.      I see. And that without that manipulation your belief
    is that [S.M.] wouldnt be making these false allegations against you?

A.      No, I dont believe she would be. [J.M.s] behind it,
    yes. She carries a big grudge on me.

Q.      I dont get the grudge.

A.      Im not [a] big money man, not somebody to be proud of.

Q.      Thats the grudge?

A.      And a lot of it stems over time. Its, a lot of things,
    it goes back, just little things but they build up.

Q.      Okay. So she has a grudge because youre not the big
    money man?

A.      Thats right. Shes embarrassed by me.

[37]

The
    appellant argues that this cross-examination was improper. He relies on the
    many decisions of this court that have held it is improper to call upon an
    accused to comment on the credibility of his accusers: see
R. v. Rose
(2001)
, 53 O.R. (3d) 417 (C.A.), at para.
    27, per Charron J.A.; and
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
    at paras. 15-16, per Simmons J.A.

[38]

The
    concern with this line of questioning is two-fold. First, it is unfair to ask
    an accused to speculate about a witnesss motives. Second, these questions risk
    shifting the burden of proof. The burden is on the Crown to prove beyond a
    reasonable doubt that a complainants allegations are true. Yet questions to an
    accused about a complainants motives may cause the trier of fact to focus on
    whether the accused can provide an explanation for why a complainant would make
    false allegations, and find the accused guilty if a credible explanation is not
    forthcoming.

[39]

Neither
    concern arises here. First, save for perhaps a few questions, the Crowns
    cross-examination of the appellant was fair. The appellants evidence-in-chief
    invited the Crowns cross-examination. Moreover, in a case such as this one,
    where one family member has alleged sexual abuse by another family member, one might
    reasonably expect an accused to be aware of any ill-will motivating that allegation.

[40]

Thus,
    questions that explored the nature of the relationship between the appellant
    and the complainants, or between the complainants themselves, were proper. The
    Crown was entitled to try to show the absence of a motive to fabricate, because
    it is a factor in the assessment of credibility. See
R. v. L.L.
at para.
    19.

[41]

Questions
    about motive become improper when they go beyond eliciting facts known to the
    accused and instead invite the accused to speculate. Few of the Crowns
    questions to the accused crossed this line. As Ms. Speyer for the Crown fairly
    acknowledged, the Crowns cross-examination of the appellants son was more
    problematic, but his evidence was of no real relevance in this case.

[42]

Second,
    the Crowns cross-examination did not shift the burden of proof. The trial
    judge expressly cautioned himself:

The accused is under no obligation to say why a Crown witness
    is not truthful or is lying. In fact, the Crown Attorney is not permitted to
    cross-examine an accused person on that issue.

[43]

Moreover,
    as I read his reasons, the trial judge did not put an onus on the appellant to
    show that the complainants had a motive to fabricate. In concluding that the
    complainants were credible, the trial judge did not find they had no motive to
    fabricate. Although he referred to their lack of vindictiveness and addressed
    elements of the appellants fabrication claims  particularly in his assessment
    of S.M.  these observations largely focused on their character and behaviour when
    testifying. These observations led the trial judge to find that J.M. and S.M.
    did not fabricate their evidence, not that they had no motive to fabricate.
    Moreover, the trial judge gave many other reasons for finding them credible.
    S.M. was candid, had a very good ability to recall events, and responded
    well to fair, yet vigorous, questions. J.M. gave her evidence in [a]
    straightforward manner and was succinct and to the point. Both were
    responsive to all questions put to them.

[44]

For
    these reasons, I would not give effect to this ground of appeal.

2.       Did
    the trial judge err by failing to address inconsistencies in the accounts of
    the two complainants?

[45]

The
    appellant submits that there were significant inconsistencies between the
    evidence of the two complainants and that the trial judge erred by failing to
    address them. I do not agree with this submission.

[46]

The
    trial judge was aware of inconsistencies in the evidence of J.M. and S.M., but
    did not specifically address them as he considered them to be minor and
    something that, as the trier of fact, I would expect.

[47]

I
    agree with the trial judges characterization of the inconsistencies as minor. For
    example, the appellant claims there is a material discrepancy between S.M.s
    testimony that no one else knew the appellant was abusing her and [J.M.]s
    testimony that she repeatedly confronted [S.M.] about the appellants sexual
    abuse before they moved to Alberta. But the evidence shows that over the many
    years S.M. was abused, J.M. had only two or three brief conversations with her
    step-sister about the apparent abuse. These conversations involved vague
    comments about Pas hugs or questions such as whats going on?, to which
    S.M. responded, Whatever or Nothing. I agree with the Crown that J.M.s
    evidence about those brief conversations is not inconsistent with S.M.s belief
    that no one else really knew what the appellant was doing to her.

[48]

To
    take another example, the appellant claims a material discrepancy because of [J.M.]s
    testimony that she had complained to [S.M.] about the appellant before they
    moved to Alberta. Yet J.M.s complaint consisted of a single comment after
    the appellant had sexually assaulted her when she was 18: Pas hugs are
    getting really annoying, to which S.M. replied, Hes not doing that to you,
    too, is he? If this is a discrepancy, it is a trifling one. The other
    so-called major inconsistencies are similarly insignificant.

[49]

Because
    these inconsistencies were minor and did not bear on the central issues in the
    case, the trial judge did not err by failing to address them in detail. Thus, I
    would not give effect to this ground of appeal either.

3.       Did
    the trial judge err by relying on the appellants demeanour in the courtroom
    during the complainants testimony to reject his evidence?

[50]

In
    his reasons, after finding the complainants to be credible witnesses, the trial
    judge considered the appellants credibility. He said:

The defendant testified. I observed Mr. [M.] very carefully
    when he gave his evidence and while he was seated in the courtroom as the
    witnesses testified. I was somewhat astonished as to his behaviour when [S.M.]
    gave [her] evidence. He sat in his chair and never looked at her when she gave
    her evidence because he was reading. He was reading something. He had some
    papers in his hand and he read through most of her evidence. I have no idea
    what it was that he was reading, but he seemed to be totally disinterested in
    what [S.M.] had to say. Im sure he heard her. In contrast, however, when
    [J.M.] testified he did look at her and on a few occasions engaged in smiles
    and perhaps laughter, but mostly smiles, with the people who were seated behind
    him in this courtroom.



He stated that [S.M.s] evidence made him sick, yet he was
    reading at the time. If her evidence made him sick, he certainly didnt display
    that to me in this courtroom by his demeanour. And Im not judging Mr. [M.]
    today based on his demeanour, I want to make that perfectly clear. Its an
    observation only, that I made.

[51]

As
    is evident from this passage, the trial judge was commenting on the appellants
    demeanour during the complainants testimony and before the appellant himself
    testified. Yet, when the appellant did testify, the trial judge did not ask him
    to explain his demeanour, nor did he alert defence counsel that he may comment
    on it in his reasons.

[52]

The
    appellant submits that the trial judge erred by relying on the appellants
    demeanour when he was not on the witness stand giving evidence as a basis to
    reject his evidence. He argues that what he did while sitting beside his lawyer
    at the counsel table during his daughters testimony had no probative value. Yet
    the trial judge relied on the appellants courtroom demeanour, and his reliance
    cannot be excused by a saving comment that he was only making an observation
    and not judging the appellant on his demeanour.

[53]

To
    support the trial judge's reliance on the appellant's demeanour outside the
    witness box, the Crown relies on this court's decision in
R. v. Owens
(
1986)
, 33 C.C.C. (3d) 275.
Owens
,
    in my view, has little or no relevance to the present case. Nonetheless, even
    though the trial judge appeared to place modest reliance on the appellant's
    demeanour outside the witness box, I do not think his doing so tainted his
    rejection of the appellant's evidence. I first deal with
Owens
, and then
    I explain why I would uphold the trial judge's credibility finding.

[54]

In
Owens
, the accused, a teacher, was appealing his convictions for
    sexually assaulting three young boys. The judge-alone trial took place over ten
    days, during which the accused testified and denied the allegations. In doing
    so, the accused put in issue his reaction to a crisis situation  there, his
    meeting with the school principal during which the accused hardly reacted when
    the principal confronted him with the abuse allegations. The accused said that
    his natural response was to withdraw rather than to react and express shock. The
    trial judge did not accept the accuseds description of his personality, in
    part relying on the accuseds demeanour over the course of the trial:

My observation of Mr. Owens was not limited to the time that he
    spent in the witness-box. In the witness-box he was indeed a very collected,
    controlled and non-distraught individual under conditions and circumstances where
    a person with less control could not possibly have controlled, indeed concealed
    the inner turmoil and stress that I am sure he was undergoing. Thus, he was in
    these circumstances able to control his actions and reactions. However, my
    observation of Mr. Owens was not limited to the time he spent in the witness-box.
    I watched him for the 10 full days of the trial, and there were many times when
    situations arose calling for reactions from people in the courtroom. Invariably,
    Mr. Owens reacted openly so that when not under strict observation, when not on
    guard, he is a very open reactive person. Furthermore, he is very articulate
    and expressive, intelligent and sensitive.

Owens
, at pp. 282-83.

[55]

On
    appeal, Mr. Owens argued that the trial judge erred in relying on his demeanour
    outside the witness box, especially as he had not been given an opportunity to
    explain his behaviour. This court disagreed. Lacourcière J.A., writing for the
    panel, said, at p. 283, that the trial judge was entitled to place some
    reliance on his observations of the disposition and demeanour of the accused
    throughout the trial:

I am not prepared to say that the learned trail judge fell into
    error by placing some reliance on his observation of the appellant outside of
    the witness-box during the trial. It is generally accepted that the demeanour
    of a witness and his manner of giving evidence in the witness-box are important
    indicia of his trustworthiness. It is unrealistic to suggest that other
    observations of a witness by the trier cannot be made in the court-room during
    the trial.
[1]

Lacourcière J.A. provided, at pp. 283-84, the following
    rationale for his holding:

As to the potential unfairness of drawing an inference based on
    demeanour which the witness has not had an opportunity to explain, I note that
    a trial judge does not ask a witness who is in the witness stand for an
    explanation of the witnesss observable physical reactions such as blushing,
    perspiring, fidgeting or other manifestations which may form the basis of an
    adverse inference. There is no reason why other observations should require a
    different treatment.

[56]

Nonetheless,
    Lacourcière J.A. recognized, at p. 283, that [t]hese observations are not
    without some danger and would not be appropriate if some manifest unfairness
    should arise. The courts holding in
Owens
is consistent with the
    views of Dean Wigmore. See
Wigmore on Evidence
(Chadbourn Rev., 1979),
    Vol. 2, at para. 274(2).

[57]

If
    applied to this appeal,
Owens
would raise four concerns. First, the
    context in which the trial judge in this case drew an inference about the
    accuseds credibility while outside the witness box differs significantly from
    the context in
Owens
. In
Owens
, the accused put his
    personality  his normal reaction to a stressful situation  in issue in his
    defence; it was thus understandable that the trial judge compared the accuseds
    own evidence of his demeanour when confronting a stressful situation to his
    demeanour during his trial. And, it was in that context our court upheld the
    trial judges reliance on the accuseds demeanour outside the witness box.

[58]

The
    context in which the trial judge in this case made comments about the
    appellants demeanour is entirely different. The appellant did not put his normal
    reaction to serious allegations in issue in his defence. Thus, in drawing an
    adverse inference about the appellants credibility from his courtroom
    demeanour, the trial judge  unlike the trial judge in
Owens
 had no
    basis for comparison.

[59]

Second,
    in one part of
Owens
,

the court expressly said that its holding
    applies to judge-alone trials and not jury trials, without a clear explanation
    for the distinction. Indeed, Lacourcière J.A. said, at p. 283, that juries are
    not invited to make observations of a witnesss demeanour outside of the
    witness box because of the ever present possibility that an adverse inference
    could be drawn from the observed reaction of a witness in situations where the
    witness could dispel the inference if given the opportunity to do so.
    Admittedly, later in his reasons, at p. 283, Lacourcière J.A. seemed to extend
    this holding to both judges and juries:

Where a witness, as the appellant did in the present case, has
    testified as to his general out-of-court disposition and demeanour, it provides
    almost an invitation to the trier of fact to observe the disposition and
    demeanour of the witness throughout the entire trial.

[60]

Nonetheless,
    in the later case of
R. v. Belowitz
(1990)
,
    56 C.C.C. (3d) 402, this court followed Lacourcière J.A.s comments about jury
    trials. The trial judge had instructed the jury that they could consider the
    demeanour of an accused during the trial. Morden J.A., at pp. 410-11, said the
    instruction was improper:

These instructions went beyond the matter of the appellants
    demeanour in the witness-box and we have no doubt, that the instructions given
    in this case were improper. For the purposes of this case we need pursue the
    law no further than noting the observation of Mr. Justice Lacourcière for this
    court in
R. v. Owens
(1986), 33 C.C.C. (3d) 275 at p. 283, 55 C.R.
    (3d) 386:

Juries are not invited to make them [observations of a
    witness in the court-room outside the witness-box] because of the ever present
    possibility that an adverse inference could be drawn from the observed
    reactions of a witness in situations where the witness could dispel the
    inference if given the opportunity to do so.

[61]

It
    is not immediately evident why judge-alone trials do not raise the same ever
    present possibility of an adverse inference when the witness, if given an
    opportunity, could dispel the inference.

[62]

Of
    course, I accept that triers of fact  judges and juries  can draw inferences
    about a witnesss credibility from the witnesss demeanour while that witness
    is testifying. And that is so, as Lacourcière J.A. noted, even though the
    witness is not given an opportunity to explain any particular mannerisms while
    testifying. But most witnesses expect to be judged on their demeanour while
    testifying as well as on the substance of their evidence. They recognize that
    people communicate both verbally and non-verbally and that the two cannot
    always be separated. I do not think witnesses have the same expectation when
    they are not in the witness box.

[63]

The
    third and related concern, which arises in the case before us and which I have
    just adverted to, is the potential unfairness of the trial judges reliance on
    the accuseds demeanour outside the witness box when the trial judge does not
    give the accused any opportunity to explain the accuseds courtroom demeanour.

[64]

The
    final concern relates to the first concern. Our court has emphasized that the
    probative value of an accuseds apparently calm reaction to an allegation of
    sexual abuse is highly suspect. Accused testify in the unfamiliar and stressful
    environment of the courtroom. Without a baseline to judge how they react to a
    stressful situation, their demeanour, even while testifying, is susceptible to
    misinterpretation. See
R. v. Levert
(2001)
,
    159 C.C.C. (3d) 71 (Ont. C.A.);
R. v. Baltrusaitis
(2002)
, 58 O.R. (3d) 161 (C.A.); and
R.
    v. Bennett
(2003)
, 67 O.R.
    (3d) 257 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 534.
    And the risk of misinterpretation is even higher when the accused is not
    testifying, but is simply sitting in the courtroom.

[65]

In
Owens
the trial judge had a baseline  the accuseds own evidence. The
    trial judge in this case had no baseline at all. He had no evidence how the
    appellant would ordinarily react to a false allegation, especially one made by
    a family member. He had no idea even what the appellant was reading while S.M.
    testified. As counsel for the appellant asked rhetorically in their factum:
    Did the appellant stand a better chance if instead of quietly reviewing
    material he shouted down the complainant, the court, and the Crown?

[66]

Because
    of these concerns,
Owens
is best restricted to its facts  to cases in
    which accused put in issue their normal reaction to stressful situations or
    serious allegations. Because the appellant did not do so,
Owens
has
    little or no relevance to this case.

[67]

What
    then of the trial judges finding concerning the appellants credibility? I
    would be troubled by the trial judges rejection of the appellants evidence if
    I thought it was based solely or even primarily on the appellants demeanour
    outside the witness box. But I do not think that it was. Even discounting the
    trial judges saving comment, at most he placed modest reliance on the
    appellants courtroom demeanour. I do not think any manifest unfairness arises
    from his having done so. He gave other cogent reasons for rejecting the
    appellants evidence. For example, the trial judge compared the appellants
    cross-examination with his examination-in-chief, and said:

In cross-examination, he was a very different person. I found
    that he was flippant, he was argumentative, he was unresponsive to questions. He
    further exhibited a lack of candor when responding to questions. At one point
    he rebuffed the Crown Attorney for asking longwinded questions. Mr. Larsh did
    not ask him longwinded questions. On a number of occasions he paused and seemed
    to be stalling for time before answering a question. That goes to candor. He
    complained that he didnt understand questions put to him yet the questions
    that were put to him were as simple as the ones put to him in-Chief by Mr.
    McLean.

[68]

And
    significantly, the trial judges considered acceptance of the credibility of
    the complainants evidence was itself a reason and compelling explanation for
    his rejection of the appellants evidence: see
R. v. D. (J.J.R.
)

(2006)
, 215 C.C.C. (3d) 252, leave to appeal to S.C.C.
    refused, [2007] S.C.C.A. No. 69, at para. 53.

[69]

It
    would have been better had the trial judge at least alerted the appellant that
    he may comment on his courtroom demeanour so that the appellant had an
    opportunity to explain his behaviour. But even though the trial judge did not
    do so, his modest reliance on the appellants demeanour outside the witness box
    did not cause a miscarriage of justice.

[70]

I
    would not give effect to this ground of appeal.

D.

Conclusion

[71]

The
    trial judges assessment of the credibility of the complainants and the
    appellants evidence did not cause a miscarriage of justice. I would dismiss
    the appeal.

Released: December 1, 2014 D.D.

John
    Laskin J.A.

I
    agree Doherty J.A.

I
    agree K. Feldman J.A.





[1]

Owens
was decided more than 25
    years ago. Today, though we still say that a witnesss demeanour may be one
    indication of the witnesss trustworthiness, we no longer regard it as an
    important one.


