



WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.C., 2021 ONCA 419

DATE: 20210615

DOCKET: C64312

Doherty, van Rensburg, and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.C.

Appellant

Mark C. Halfyard, for the appellant

Catherine Weiler, for the respondent

Heard: April 29, 2021 by videoconference

On appeal from the conviction entered by Justice Kofi N. Barnes
    of the Superior Court of Justice on January 30, 2017.

Thorburn J.A.:

OVERVIEW

[1]

On January 30, 2017, the appellant, R.C., was convicted of sexual
    assault, sexual interference, incest, and assault. The trial judge provided
    oral reasons for these convictions (the Oral Reasons). In his reasons, the
    trial judge stated:

I will at the end of my decision order a transcript of my
    decision, at which time, I will include excerpts of the questions and answers
    verbatim from the transcript to illustrate my areas of concern [with the
    appellants evidence].

[2]

On September 23, 2017, the appellant was sentenced to eight years in
    custody less 30 days pre-trial custody.

[3]

On January 9, 2019, nearly two years after the Oral Reasons were given,
    the trial judge released edited reasons for the convictions (the Edited Reasons).

[4]

The appellant now raises three grounds of appeal in relation to the
    convictions entered in January 2017:

a)

The trial judge failed to properly assess the material inconsistences in
    the complainants evidence and the reasons he gave for resolving those
    inconsistencies were illogical. As such, he failed to properly apply the principles
    set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742;

b)

The trial judge applied more scrutiny to the appellants evidence than
    he did to the complainants evidence; and,

c)

The trial judge provided insufficient reasons.

[5]

The appellant claims that in assessing his three grounds of appeal, this
    court should consider only the Oral Reasons rendered on January 30, 2017 not
    the Edited Reasons released on January 9, 2019. The appellant further asserts
    that the Oral Reasons are insufficient to support a conviction on any of the
    charges.

THE FIRST
    ISSUE: WHETHER THE ORAL OR EDITED REASONS SHOULD BE CONSIDERED ON THIS APPEAL

[6]

The appellant filed a motion to consider fresh evidence on the consent
    of both parties in support of his request that this court consider only the
    Oral Reasons. The fresh evidence includes both the Oral Reasons and the Edited Reasons,
    and a blackline comparison of the changes.

[7]

In the Edited Reasons the trial judge did not disavow his Oral Reasons.

[8]

The Edited Reasons (a) contain further explanations of the trial judges
    reasons for rejecting the appellants evidence; (b) omit two grounds for
    rejecting the appellants evidence (relating to income he reported to
    immigration authorities in support of his immigration application for his children,
    and how long he remained employed at his place of work); and (c) provide further
    reasons for why the trial judge found the complainants evidence to be credible.
    The changes between the Oral and the Edited Reasons are succinctly set out in
    the appendices to the respondent Crowns factum.

[9]

The changes in the Edited Reasons are both extensive and substantive.

[10]

A
    trial judges reasons are presumed to be an accurate reflection of the
    reasoning that led the trial judge to the decision. That presumption, while
    strong, can be rebutted by cogent evidence. For example, reasons given long
    after a verdict was rendered and subsequent to the commencement of an appeal,
    can compel the conclusion that the reasons are not an accurate reflection of
    the decision-making process engaged in by the trial judge and that the trial
    judge engaged instead in a result-driven consideration of the evidence. This is
    particularly true where  as here  the reasons were rendered after an appeal
    had been commenced:
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267, at
    paras. 18‑19;
R. v. Wang
, 2010 ONCA 435, 263 O.A.C. 194, at
    paras. 9-12.

[11]

In
Wang
, at para. 9, this court observed that it is inappropriate to modify,
    change or add to a transcript of oral reasons rendered in court. At a minimum,
    where oral reasons are given and written reasons issued sometime later, changes
    that represent something substantially different from what in fact occurred in
    the courtroom are not permitted:
Wang
, at para. 10.

[12]

The
    presumption of validity has been rebutted in this case by virtue of the
    substantive changes made in the Edited Reasons.

[13]

The
    Edited Reasons therefore cannot be relied upon to justify the convictions.
    However, the Oral Reasons remain intact. The appellant does not argue those
    reasons do not reflect the trial judges reasoning process. Instead, the
    appellant argues that reasoning process is legally flawed. The outcome of the
    appeal turns on those arguments: see
R. v. Arnaout
, 2015 ONCA 655, 127
    O.R. (3d) 241, at para. 60.

[14]

Therefore,
    only the Oral Reasons of 2017 will be considered in reviewing these grounds of
    appeal as they were issued contemporaneously with the appellants convictions and
    have not been disavowed.

THE SECOND
    ISSUE: WHETHER THE ORAL REASONS ARE SUFFICIENT TO JUSTIFY THE CONVICTIONS

[15]

The
    second issue is whether the Oral Reasons are sufficient to justify the verdict.

[16]

In
    this case, credibility was critical as there were no witnesses to any of the incidents.
    Considerable deference is afforded to trial judges who see and hear the
    witnesses firsthand, provided the reasons as a whole disclose an intelligible
    basis for the verdict:
R. v. G.F.
, 2021 SCC 20.

[17]

In
    order to assess whether the reasons are sufficient to justify the verdict, I will
    briefly review the evidence before addressing the legal issues raised and the
    reasons of the trial judge.

(1)

The Evidence Adduced at Trial

[18]

The
    appellant is the complainants father. At the time of trial, the complainant
    was 22 years old. She was born in Jamaica and moved to Canada in 2007. The
    appellant was the complainants immigration sponsor. The complainant lived with
    other family members until 2008, when she and her older sister moved into the
    home of the appellants friend Vivienne, where the appellant also resided.

[19]

The
    complainant says she was sexually assaulted by the appellant six times in 2008-2009,
    when she was 13 or 14 years old. She claims the assaults took place at Viviennes
    home, at a Motel 6, and in the bedroom of another apartment she and her father shared
    with others.

The complainants evidence

[20]

At
    the time of the first alleged assault, the complainant said she was sleeping in
    the basement of Viviennes house, lying on her stomach, when she felt the appellant
    touch her vagina over her clothes, shift her underwear to the side, and then
    penetrate her vagina with his penis. She said she did not remember if he
    ejaculated. She said she was shocked and confused but told no one.

[21]

The
    second incident is not the subject of this appeal, as the appellant was
    acquitted of this charge. I will describe the trial judges approach to this
    charge in greater detail below.

[22]

The
    complainant testified that the third and fourth incidents took place while she and
    her father were living in a Motel 6. On the third occasion, the complainant said
    she was in the bathroom when the appellant called her out, asked her to look
    through the window to see if a car was there, pulled her onto the bed, and had sexual
    intercourse with her. In so doing, she said the appellant pushed her toward
    him, took her towel off, shifted her underwear to one side and inserted his
    penis into her vagina. The complainant said she knew he was using protection
    because she could feel it though she did not see him putting it on. She claimed
    she was screaming.

[23]

On
    the fourth occasion, the complainant said the appellant approached her while
    she was sleeping on her stomach. She felt something on her thighs, the
    appellant shifted her underwear to one side and inserted his penis into her
    vagina. She testified that she was on her side when this happened. She said she
    asked him to stop but he did not. She did not know if he ejaculated.

[24]

The
    complainant testified that, on the fifth and sixth occasions, she and the
    appellant were sharing one room in a two-bedroom apartment. The second bedroom
    was occupied by two women tenants and a baby. The complainant said she was
    sleeping on a mattress on the floor, the appellant touched her legs and had
    intercourse with her. She did not remember if the other tenants were home or
    whether the appellant used protection.

[25]

On
    the sixth occasion, she said the appellant came into the room and asked her to
    take off her clothes. She replied Why? and he said, Just take off your
    clothes. She was wearing a tank top. She said he then grabbed her, put her on
    the ground and had intercourse with her. She did not remember whether he
    ejaculated. She said they fought and he punched her on the lips with a closed
    fist. She claimed her lips were bleeding. In cross-examination she said that her
    lips were cut on the inside.

[26]

Shortly
    thereafter, the complainant spoke to her school guidance counsellor and said
    she had been abused. She did not tell the counsellor the nature of the abuse. She
    was picked up by her aunt and spent the rest of the school year living with her
    grandmother.

[27]

She
    never lived with the appellant again and returned to Jamaica at the end of that
    school year. While in Jamaica, she registered a complaint to the Jamaican police
    about the alleged sexual assaults. Also while in Jamaica, she became pregnant
    by a boyfriend. The complainant said that when her father called and asked her
    if she was pregnant, she lied and said she was not. She later admitted that she
    was pregnant.

[28]

Her
    father arranged for her to return to Canada to have the baby. The complainant
    said she snuck her passport from her mothers home and did not tell her mother
    she was coming to Canada. When she arrived in Canada, in 2012, the complainant
    was told by her aunt that she would have to live with her father. The
    complainant refused and called police to report the allegations of sexual
    assault. The police interviewed her and sent her to a shelter.

Other Crown witnesses evidence

[29]

Viviennes
    daughter testified that, when she was 7 or 8 years old, she went into the
    basement of Viviennes home and saw the appellant lying on top of the
    complainant with sheets pulled over their shoulders. She said the appellant
    started yelling at her, telling her this was not her business and that she
    should leave. In cross-examination, she said he may have simply been reaching
    over the complainant to get to the television remote control. The trial judge
    concluded that the disparities in her account left him in a reasonable doubt
    about what she saw. As such, he did not rely on her evidence.

[30]

The
    appellants adult daughter also testified that, while living in Viviennes home,
    she saw the complainant and the appellant lying in bed together in an
    inappropriate position with the complainant on top of the appellant. She said
    that when she told the complainant that she should not be in that position at
    her age, the complainant did not react.

[31]

Vivienne
    testified and confirmed that the complainant preferred to sleep in the basement
    with her father despite having other sleeping options available. She said she
    never saw anything inappropriate take place.

The appellants evidence

[32]

The
    appellant denied all of the allegations of sexual assault. He admitted that he
    assaulted the complainant by hitting her and slapping her twice on the arm and
    may have hit her on the mouth. He said he did so after they had had an argument
    because the complainant kept coming home late. He testified that the day after
    their physical fight, the complainant went to school, and he heard from his
    sister that the complainant had gone to live with her.

[33]

The
    appellant testified that the complainant told him one of her friends falsely
    accused her father of sexual assault so that she would get her own place to
    live. He suggested that this was the complainants motive to fabricate the
    allegations.

[34]

He
    also testified that when she returned from Jamaica, she told him she wanted to
    go on welfare and live on her own. He told her she could not as he was her
    immigration sponsor and financially responsible for her. She left and never
    returned.

(2)

Analysis and Conclusion as to Whether the Verdict Was Justified

The law

[35]

Considerable
    deference is afforded to trial judges on findings of credibility as, unlike
    appeal courts, trial judges see and hear the witnesses firsthand:
R. v. M. (R.E.)
,
    2008 SCC 51,

[2008] 3 S.C.R. 3, at paras. 28 and 32. The reasons must however, when
    read in context of the record as a whole, disclose an intelligible basis for
    the verdict capable of permitting meaningful appellate review:
M. (R.E.)
,
    at para. 53;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras.
    10-19.

[36]

When
    assessing credibility and two different versions of events are presented, the principles
    set out in
R. v. W.(D.)
are to be applied. In short, (i) if the
    accuseds evidence is believed, the accused must be acquitted; (ii) if the
    accuseds evidence is not believed but the court is left in reasonable doubt by
    that evidence, the accused must be acquitted; and (iii) even if the judge is
    not left in doubt by the evidence of the accused, the court must still ask
    whether, on the basis of the evidence that is accepted, the court is convinced
    beyond a reasonable doubt by that evidence of the accuseds guilt.

[37]

Trial
    judges are not required to address every inconsistency in the evidence of a
    witness. They are however obliged to explain how they resolve major
    inconsistencies. Inconsistencies about which an honest witness is unlikely to
    be mistaken can demonstrate a carelessness about the truth while inconsistencies
    about peripheral issues are of less significance:
R. v. G. (M.)
(1994),
    93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also
R. v. Dinardo
,
    2008 SCC 24,

[2008] 1 S.C.R. 788, at paras. 30-31.

[38]

At
    issue in this case is whether, in convicting the appellant, the trial judge (a)
    failed to properly assess the material inconsistences in the complainants
    evidence and the reasons he gave for resolving the inconsistencies were
    illogical, (b) applied more scrutiny to the appellants evidence than he did to
    the complainants evidence, and/or (c) provided insufficient reasons.

The trial judges treatment of the appellants evidence

[39]

The
    trial judge made reference to
W.(D.)
, although he did not outline the
    elements of the three-part test to be followed when assessing credibility where
    there are two different versions of events presented. The trial judge
    recognized that this was a case that turned on credibility and noted that the
    burden of proof was on the Crown.

[40]

The
    trial judge recounted the testimony of each of the witnesses at trial.

[41]

He
    identified seven areas of concern in the appellants testimony. These are (i) the
    income the appellant reported to immigration authorities in support of his
    immigration application for his children; (ii) the duration and circumstances
    of his employment; (iii) how long he slept in Viviennes room and when he moved
    to the basement; (iv) the options available to him for sleeping arrangements
    when, according to him, the complainant insisted she wanted to sleep in the
    basement with him; (v) certain evasive answers given as to whether or not the
    complainant was sleeping with him in bed when Viviennes daughter came into the
    basement bedroom; (vi) his unresponsive and evasive answers given in
    cross-examination when asked whether he ever slept in the same bed as the
    complainant; and (vii) the appellants testimony in chief that he had no
    contact with the complainant after she moved to his sisters house in April
    (before moving back to Jamaica in July). However, in cross-examination, he
    spoke of drive-by sightings of the complainant during this period.

[42]

The
    trial judge concluded that [it is based on] the cumulative effect of all of
    these types of changes in the testimony and others that I will lay out in my
    transcribed reasons, that I conclude that [the appellant] was not being
    truthful and, in fact, I reject his evidence and conclude that it does not
    raise a reasonable doubt in my mind, nor do I accept it.

The trial judges rejection of certain evidence adduced by
    the Crown

[43]

The
    trial judge also did not accept the evidence of Viviennes daughter and the
    appellants older daughter that they had observed the appellant in bed with the
    complainant doing inappropriate things. The trial judge held that Viviennes
    daughter was very young when she made her observations. Several years have
    passed prior to her testifying in this trial and she said it was possible that [the
    appellant] was leaning over [the complainant] to get the remote. He concluded
    that her willingness to accept that it could simply have been an act of
    reaching for the remote create the doubt in my mind on what she saw.

[44]

He
    also rejected the appellants daughters evidence that she saw the complainant
    on top of the appellant in bed. In cross-examination she said that the
    appellant was sleeping when she made her observations about what she described
    as inappropriate. He concluded that her testimony does not add anything to
    the Crowns case Her evidence is inconclusive at best. Ultimately, I find
    it to be a red herring.

The trial judges treatment of the complainants evidence

[45]

The
    trial judge acquitted the appellant of the second instance of alleged sexual
    assault because the complainants inconsistency in versions of the events led
    him to have some concerns about her recollection of the events, leaving him in
    a reasonable doubt as to whether the events took place. Those versions of
    events are as follows:

i.

In examination-in-chief
    she said he pinched her vagina over her clothes but on cross-examination said
    he tapped her vagina. In re-examination she said it was a pinch;

ii.

In
    examination-in-chief she said that the appellant asked her if she liked it and
    she said no but on cross-examination she did not remember if he said anything
    to her; and,

iii.

On cross-examination she
    said the appellants hand was not just resting on her leg, then indicated that
    she did not recall his hand resting on her leg, and then said he was rubbing
    her leg with his right hand.

[46]

The
    trial judge reviewed her testimony and concluded that [a]t the very minimum,
    it leaves me in a reasonable doubt as to whether this specific incident she
    described actually took place. He therefore acquitted the appellant of this
    assault not on the basis of an adverse credibility finding, but rather, on the
    basis of the reliability of her evidence in respect of this one incident.

[47]

Importantly,
    the complainant was not cross-examined in respect of any of the other five
    assaults of which the appellant was convicted.

[48]

The
    trial judge found there was a second inconsistency relating to the complainants
    reasons for reporting the sexual assaults in 2012. In examination‑in-chief,
    she testified that she went to the police at her mothers urging after her aunt
    told her she was going to have to live with her father again. In cross-examination
    she denied that the only reason she reported the sexual assaults to the police
    was so that she would no longer have to live with her father. Later, in cross‑examination,
    she said she told the truth at the preliminary inquiry when she said that, in
    her mind, she disclosed the assaults because the only way to avoid living with
    her father was to go to the police.

[49]

However,
    the trial judge did not accept the defence theory that this demonstrated that the
    complainant was not believable and that her only motive in going to police was
    her desire to live on her own.

[50]

The
    trial judge correctly noted that the defence theory was belied by the fact that
    as early as 2010, the complainant had already made an allegation about sexual
    assault by her father to the police in Jamaica. This is before she had returned
    to Canada and before she had found out that at some point, she was going to
    have to live with her father. For this reason, this inconsistency did not
    adversely affect the trial judges assessment of the complainants credibility.

[51]

While
    summarizing her testimony, the trial judge noted that the complainants testimony
    contained several other inconsistencies between both (i) her prior statements
    and (ii) the appellants testimony, namely:

i.

She said
    she had little contact with the appellant as a child, growing up in Jamaica,
    though she later admitted she saw him regularly;

ii.

When she first
    came to Canada, she said she first stayed with her grandmother when it was in
    fact her aunt;

iii.

She initially said her
    aunt sponsored her to come to Canada, though she later acknowledged that the
    appellant was her sponsor;

iv.

She claimed the
    appellant owned a gun though the appellant denied this and there was no
    evidence he had one;

v.

She testified
    that she lied to the appellant about her pregnancy when she first became
    pregnant by her boyfriend in Jamaica; and,

vi.

She initially said
    that, after she reported abuse, her guidance counsellor told her to call 911. She
    later said she did not recall if she was told to call 911. When she was shown
    the preliminary inquiry transcript, she accepted that evidence that the
    counsellor did not tell her to contact police.

[52]

The
    trial judge concluded however that,

I find the inconsistencies in [the complainants] evidence,
    as I have already reviewed them to be minor, and thus I accept her testimony.
He held that upon the evidence, I do accept that the Crown has proven the
    charges against [the appellant] beyond a reasonable doubt, and therefore he is
    found guilty on all counts.

Analysis of the trial judges reasons for conviction

[53]

In
R. v. R.A.
, 2017 ONCA 714, 421 D.L.R. (4th) 100, this court reviewed
    the principles governing an appeal based on the trial judges assessment of
    credibility and resolution of testimonial inconsistencies. This court held, at
    para. 46, that an appellate court should not interfere with a trial judges
    findings of credibility if the core of the complainants allegations against an
    appellant remain largely intact on a review of the entirety of the evidence.

[54]

Moreover,
    in
R. v. A.A.
, 2015 ONCA 558, 337 O.A.C. 20, at para. 124, this court observed
    that:

Disagreement with the weight assigned does not ascend to the
    level of palpable and overriding error. Nor does the failure to consider
    inconsistencies on the periphery compel intervention in the absence of any
    obligation to consider and respond to each claim no matter how distant from the
    core issues of this case.

[55]

In
R. v. G.F.
, at paras. 81-82, the Supreme Court emphasized the
    deference owed to a trial judges credibility findings, the presumption that
    trial judges must be taken to know the law especially settled principles, and
    that reasons which are imperfect or language which is ambiguous does not
per
    se
require reversal.

[56]

The
    trial judge adverted to the well-known
W.(D.)
principles. After
    reviewing the evidence, he found that that the appellants testimony was
    evasive and contained inconsistencies such that he did not believe the appellant,
    and his evidence raised no reasonable doubt as to his guilt. There was evidence
    to support his conclusion such that, when read in context, they are sufficient
    to disclose an intelligible basis for the verdict.

[57]

While
    his explanation of how he assessed the complainants testimony thereafter was brief,
    the trial judge, while recounting her evidence in the Oral Reasons, provided
    some evaluation of its strength. He addressed the two material inconsistencies
    identified on appeal. Although there were several other inconsistencies in her
    evidence, he adverted to these inconsistencies in reviewing the evidence and,
    in my view, his reasons fairly characterized these inconsistencies as minor.

[58]

Given
    the considerable deference afforded trial judges when deciding issues of
    credibility, the fact that the trial judge did assess the material
    inconsistencies in both the appellant and the complainants evidence and provided
    some reasons for resolving the inconsistencies, when read in context, the Oral
    Reasons are sufficient to disclose an intelligible basis for the verdict. They
    reveal no uneven scrutiny of the evidence nor do they demonstrate a
    misapprehension of the Crowns burden.

DISPOSITION

[59]

For
    these reasons I would dismiss the appeal.

Released: June 15, 2021 D.D.

J.A. Thorburn J.A.

I agree. Doherty
    J.A.

I agree. K. van Rensburg J.A.


