



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    the victim shall not be published in any document or broadcast or transmitted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.




C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. E.H., 2020 ONCA 405

DATE: 20200623

DOCKET: C66510

Simmons,
    Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.H.

Appellant

Nader R. Hasan, for the appellant

Lisa Fineberg, for the respondent

Heard: February 5, 2020

On appeal from the conviction entered on
    October 4, 2018 by Justice Paul T. OMarra of the Ontario Court of Justice.

Trotter
    J.A.:

A.

introduction

[1]

The appellant was found guilty of two counts
    each of sexual assault (
Criminal Code
, R.S.C. 1985, c. C-46, s. 276) and sexual interference (s. 151) against
    the two young daughters of his former girlfriend. The allegations relate to
    events in 2002 to 2004.

[2]

At the time of trial,
[1]
V.M. was 28 years old and
    testified about events when she was 12 to 14; whereas W.M.(1) was 23 and
    reported being abused by the appellant when she was 6 to 8. They both claimed
    that the abuse occurred in their respective bedrooms when the appellant stayed
    overnight at their house. The appellant testified and denied the allegations.

[3]

In lengthy reasons for judgment, the trial judge
    accepted the evidence of both complainants and was satisfied beyond a
    reasonable doubt of their allegations. He made detailed credibility findings.
    The trial judge disbelieved the appellant and rejected his evidence, finding
    that it did not raise a reasonable doubt.

[4]

The appellant advances numerous grounds of
    appeal. The common thread that runs through them is an attack on the trial
    judges credibility findings. The appellant essentially asks this court to
    re-try the case on a paper record. I would not accede to this request.

[5]

The trial judges findings were supported by the
    evidentiary record. He explained how he reached his conclusions with respect to
    each witness. The appellant has identified no errors that would displace the
    deference to which the trial judges reasons are entitled on appeal.

B.

factual background

[6]

In this section, I provide a brief summary of
    the evidence at trial. More detail is provided below as necessary in the
    discussion of specific grounds of appeal.

(1)

Introduction

[7]

W.M. is the mother of both complainants, V.M.
    and W.M.(1). W.M.(1) has a twin brother. The three children lived with their
    mother after she separated from her previous husband.

[8]

W.M. met the appellant shortly after the
    separation. The appellant worked at a convenience store close to W.M.s house.
    He came to Canada from Iraq, where most of his family remained. In addition to
    working, the appellant attended college.

[9]

W.M. frequently took her children to the store
    where the appellant worked to buy them candy. The appellant and W.M. eventually
    started to have a relationship. After a few months, the appellant occasionally
    stayed overnight at W.M.s house but maintained his own residence. The
    frequency of his overnight visits was contentious at trial.

[10]

The relationship between the appellant and W.M.
    lasted about two years. They had different ideas about the nature of their
    relationship. W.M. wanted a committed relationship, while the appellant was
    content with something more casual. He was concerned that his family, for
    cultural reasons, would never fully accept W.M. When the relationship ended,
    W.M. was deeply disappointed.

[11]

As discussed in more detail below, the
    appellants relationships with V.M. and W.M.(1) were very different. Whereas
    W.M.(1) liked the appellant and got along well with him, V.M. did not; their relationship
    was fraught and conflictual.

(2)

The Allegations of V.M.

[12]

V.M., the older of the two girls, was initially wary
    of the appellant because he was the first person their mother dated after her
    marriage ended. V.M. did not have a good feeling about the appellant when he
    first came into their lives.

[13]

In 2002, V.M.s bedroom was on the bottom level
    of what was described as a five-level, split-level home. This bedroom had been
    converted from an office. Everyone else slept on the top floor of the house.

[14]

The first time the appellant came into V.M.s
    room at night he lay down on her bed beside her, scratched her back, and
    stroked her hair. V.M. could feel the appellants erection against her buttocks
    and described a dry humping motion. As things progressed, he touched her
    breast area under and over her bra. He also put his hand under V.M.s underwear
    and touched her buttocks. On some occasions, the appellant did this while he
    was on top of V.M. The incidents lasted about 45 minutes on average.

[15]

V.M. was unsure about how often the bedroom
    visits occurred. In her police statement, she said that it happened two to
    three times a week. At trial, she testified that it happened, Too many times
    to count. It became a regular thing. In cross-examination, she agreed with the
    suggestion that the appellant came to her room about twice a week, both during
    the week and on weekends. In terms of the number of times the appellant stayed
    over, V.M. disagreed with her mother that it was only once a week or once every
    second week.

[16]

V.M. agreed that she was rude to the appellant,
    but not all of the time. She called him a douchebag. It was suggested to V.M.
    that she made fun of his accent, disliked the food he cooked, and once told him
    to go back to where he came from. She said that she did not have a specific
    memory of these things because it happened so long ago, but Im not going to
    say I didn't say it. At one point in her testimony she said, Again, I don't
    have a memory of it, but I didnt like him and I dont think I was the nicest
    and I probably said some hurtful things. V.M. explained that she disliked one
    of the spices he used to cook and she reported having misophonia  a negative,
    emotional reaction to certain sounds, such as the sound of people eating or
    chewing their food.

[17]

Although V.M. was admittedly rude towards the
    appellant, she testified that she did not have a good relationship with her
    mother. She felt helpless and did not think that her mother would believe her
    if she disclosed what was happening. V.M. was pleased when her mother and the
    appellant broke up.

(3)

The Allegations of W.M.(1)

[18]

W.M.(1) testified that, when she met the
    appellant, he seemed nice and she did not have any negative feelings towards
    him. Her views changed when he touched her in a sexual manner. W.M.(1) said
    that the appellant came into her bedroom at night, which was on the same level
    as her mothers bedroom. She remembered it happening four times. He stayed for
    about five minutes each time. W.M.(1) testified that the appellant touched her
    below her waist, including her vagina, and sometimes her buttocks after pulling
    her pyjama bottoms down. She was scared and confused but did not tell anyone
    because she did not understand what was happening. W.M.(1) was about six years
    old at the time.

[19]

There were inconsistencies between her testimony
    and her 2010 statement to the police in terms of precisely what the appellant
    did to her. She also told the police that it sometimes felt like it was just a
    dream. However, at trial she repeatedly asserted that the sexual abuse was
    real.

[20]

W.M.(1) testified that the appellant stayed over
    once or twice a week.

(4)

W.M.s Evidence

[21]

W.M. did not witness any of the conduct or
    activity alleged by her daughters. However, she was able to provide context on some
    issues.

[22]

W.M. described her relationship with the
    appellant in positive terms. She was in love with him and was disappointed when
    the relationship ended. She now looks at the relationship differently, in light
    of the subsequent allegations. She admitted to seeing everything through a different
    lens.

[23]

W.M. testified that the appellant stayed over at
    her house once every week or two weeks. There was a period of time, when they
    were considering moving in together, where he stayed more often. But this only
    lasted for a couple of weeks to a month. When the appellant stayed overnight,
    he would sometimes leave the bedroom to use the washroom. He also went to the
    girls bedrooms to say good night to them. She thought it was sweet that he
    wanted to tuck them in, but she did not see it happen. In cross-examination, W.M.
    agreed that she never woke up to find that the appellant was not there;
    however, she was a heavy sleeper. W.M. acknowledged that she never told the
    police about the appellant tucking her daughters in when she gave a statement
    in 2010.

(5)

The Appellants Evidence

[24]

The appellant was 46 years old at trial. By that
    time, he had been married since 2007 and had two children. Born in Iraq, the
    appellant came to Canada alone in 1998, but he had some relatives who he saw
    regularly. The appellant soon learned English and took college courses. He
    worked at a number of part-time jobs, including the one at the store where he
    met W.M.

[25]

At first, the appellant thought that W.M. was
    married. He eventually asked W.M. if she was interested in going out with him. He
    asked her if she would be his best friend. The appellant explained that, in
    his culture, it meant a romantic and sexual relationship but without
    commitment to any marriage, or move in. W.M. said, Sure, and we can have fun.
    It was not until a few months later that he explained to W.M. what best
    friends meant. He advised her that it was always his intention to marry
    someone from his own culture. This was the source of arguments between them. He
    did not tell any of his relatives that he was dating W.M. as it would have been
    improper. He did tell some of his friends.

[26]

The appellant described a very positive
    relationship with W.M.(1) and her twin brother. He said that he loved the
    twins, as they did him. It was different with V.M. The first time he met V.M. at
    the house, she did not seem happy that he was there. He described a very bad
    relationship with V.M. She criticized his cooking and the way he spoke. The
    appellant said, I didnt like her and she didnt like me and I didnt like
    her at all. W.M. confirmed this characterization of the relationship.

[27]

The appellant went to W.M.s house for dinner two
    to three times a week. He slept over about three times a month  sometimes it
    was twice a month; sometimes it was four times a month. He denied staying over
    on weekdays, or if he had to work the following day. He mostly stayed over on
    Saturdays, following late nights out at a bar or club. He said, that would be
    around 85 percent of the time.

[28]

The appellant contradicted W.M.s evidence that there
    was a period when they tried living together and that he stayed over more
    frequently during that time. He said, That never happened.

[29]

The appellant agreed that he wanted to spend all
    the time that he could with W.M. However, while he visited often for dinner
    during the week, he did not stay over on those nights because he worked or
    attended school during the week. He acknowledged that he lived a short distance
    from W.M.s house, and that the convenience store and the college he attended
    were both nearby (essentially equidistant from his home and W.M.s house).
    However, the appellant said it didnt matter how close they were because he
    never tried it. The appellant kept a t-shirt and underwear at W.M.s home, and
    she provided him with a toothbrush.

[30]

The appellant insisted that he always remained
    in the master bedroom once he and W.M. retired for the evening. He said he
    never took part in putting the kids to bed, and never had to deal with them
    during the night if they ever woke up.

(6)

The Disclosure of the Allegations

[31]

The allegations came to light in 2010  roughly six
    years after the relationship ended. W.M.(1) was 15 and in grade 10; V.M. was
    away at university. The disclosure arose during a fierce argument between W.M.(1)
    and her mother.

[32]

One evening, W.M. confronted W.M.(1) about her
    chronic truancy. W.M.(1) had been lying to her mother, and hiding it from her,
    by deleting voicemail messages left by school authorities. W.M. was very angry
    and threatened serious discipline, such as terminating W.M.(1)s access to her
    computer, cellphone, and social media. W.M.(1) testified that this would have
    been like a jail sentence to her.

[33]

W.M.(1) then got in touch with V.M. The sisters
    communicated through Facebook. W.M.(1) told V.M. that she had been sexually
    abused by the appellant. V.M. said that she experienced the same thing. W.M.(1)
    asked V.M. not to tell their mother, afraid that she would freak out. At the
    time of this exchange, V.M.s friend was with her and was made aware of what
    had transpired. This friend contacted W.M. to explain the situation. The police
    were called that evening.

[34]

In cross-examination, W.M.(1) acknowledged that,
    when she spoke to the police on that first occasion, she did not tell them that
    she was in trouble with her mother at the time. She explained that she was
    nervous and forgot about it.

C.

the trial judges reasons

[35]

In his reasons for judgment, the trial judge
    gave a full account of the evidence, in addition to accurately setting out the
    positions of the Crown and the defence. He made detailed credibility findings. I
    will examine some of these findings more closely below. For the time being, I
    reproduce the trial judges general assessment of the evidence, at paras.
    155-156:

By way of overall observation, both
    complainants testified as mature adult women about events that occurred when
    they were children. In my view, [W.M.(1)] was measured but more subdued in her
    testimony. V.M. was thoughtful and balanced in her testimony. V.M. conceded
    that there were limitations on her memory. Both complainants were emotional at
    times.

[Mr. H.] was a guarded witness and appeared
    uneasy. He was combative and flippant to a certain degree during his
    cross-examination.

[36]

The trial judge also said of the appellant: I
    find his evidence unconvincing. He was neither a credible nor a reliable
    witness.  The trial judge observed that the appellant was motivated by an
    attempt to distance himself from any likely opportunity to have committed these
    offences.

[37]

In its closing submissions, the Crown argued
    that the evidence of each complainant could be used as similar fact evidence in
    considering the evidence of the other. The appellant resisted the application. In
    his reasons, the trial judge concluded that standing alone and independent to each
    other, the complainants evidence was proof beyond a reasonable doubt. Nonetheless,
    he allowed the similar fact application and analyzed the evidence within this
    framework.

D.

discussion

[38]

The appellant advances many grounds of appeal.
    He submits that the trial judge: applied different standards of scrutiny
    between the evidence of the complainants and the appellant; misapprehended
    parts of the evidence; relied unduly on the demeanour of the witnesses;
    improperly used a prior statement made by V.M.; improperly relied upon common
    sense assumptions about human behaviour; disregarded the timing and nature of
    the disclosure; and erred in his similar fact evidence ruling. As noted in
    para. 4, above, all grounds of appeal drive towards the same point  the trial
    judge erred in making his credibility assessments.

(1)

Uneven Scrutiny and Misapprehension of the
    Evidence

[39]

The appellant submits that the trial judge
    applied different standards of scrutiny as between the evidence of the
    complainants and the appellant. Under this general heading, the appellant focuses
    on 11 findings that he says demonstrate this skewed approach. There is some
    overlap between this ground of appeal and the appellants contention that the trial
    judge misapprehended certain aspects of the evidence. In the discussion below,
    I flag where the appellants submissions also involve claims of
    misapprehension.

[40]

A claim of uneven scrutiny is often made in
    cases where the evidence pits the word of the complainant against the denial
    of the accused and the result turns on the trial judges credibility
    assessments:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59. That
    description applies to this case.

[41]

This court has often observed that success on
    this ground of appeal is very difficult to achieve: see
R. v. Gravesande
, 2015 ONCA 774, 128
    O.R. (3d) 111, at para. 18;
R. v. Kiss
, 2018 ONCA 184, at paras. 4 and 83;
R.
    v. R.M
.
, 2019 ONCA
    419, at para. 31;
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30;
R. v. Polanco
, 2018 ONCA 444, at para.
    33;
R. v. Chanmany
,
    2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28, leave to appeal refused,
    [2017] S.C.C.A. No. 88;
R. v. D.E.S
.
, 2018 ONCA 1046, at paras. 15-16;
R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C.
    (3d) 362, at para. 96; and
R. v. Phan
, 2013 ONCA 787, 313 O.A.C. 352, at para. 34. In
R. v. Aird
, 2013 ONCA 447, 307 O.A.C.
    183, Laskin J.A. explains why, at para. 39:

It is difficult for two related reasons:
    credibility findings are the province of the trial judge and attract a very
    high degree of deference on appeal; and
appellate courts invariably view
    this argument with skepticism, seeing it as a veiled invitation to reassess the
    trial judge's credibility determinations.
[Emphasis added.]

[42]

Skepticism is warranted here. Although styled as
    an uneven scrutiny argument, the appellant asks this court to substitute its
    own credibility findings.  And while not confronting the issue directly as a
    ground of appeal under s. 686(1)(a)(i) of the
Criminal
    Code
, he suggests that the verdict is
    unreasonable. He submits that, even if this court should disagree with that
    submission, the trial judges forgiving approach to the complainants evidence
    stands in stark contrast to his assessment of the defendants evidence. I
    reject both submissions.

[43]

Although an unreasonable verdict claim may be based
    on credibility findings, it cannot succeed unless the trial judges determinations
    cannot be supported on any reasonable view of the evidence: see
R. v. Burke
, [1996] 1 S.C.R. 474, at
    para. 7;
R. v. R.P
.
, 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10;
R. v. L.E
.
, 2019 ONCA 961, 382 C.C.C. (3d) 202, at para. 108. Here, the trial
    judge was entitled to accept the evidence of the complainants first-hand
    account of being abused by the appellant.

[44]

The trial judge did not employ a more exacting
    standard of scrutiny to the appellants evidence. Taking advantage of his
    unique positionin being able to see and hear the witnesses (
R. v. Gagnon
, 2006 SCC 17, [2006] 1
    S.C.R. 621, at para. 11), the trial judge explained his assessment of the
    evidence of the complainants and the appellant. There is no indication that his
    approach to his task was unbalanced or skewed. Unlike
Gravesande
and
Kiss
, in which the uneven scrutiny
    claims succeeded, the appellant has been unable to point to specific,
    demonstrable problems with the evidence of the Crown witnesses.

(a)

The Complainants Evidence

Prior inconsistent statements/inconsistencies
    between Crown witnesses

[45]

The appellant submits that the trial judge
    failed to properly address the many internal contradictions in the evidence of
    V.M. and W.M.(1), as well as the conflicts between the evidence of all three
    Crown witnesses.

[46]

The trial judge was aware of the internal
    inconsistencies in the evidence of the complainants when compared with their
    statements to the police and their testimony given at the first trial. These
    contradictions were reviewed for him in significant detail during submissions. He
    found them to be slight and inconsequential and they did not undermine the
    core allegations made by each complainant. Although he did not discuss every
    inconsistency identified by defence counsel at trial, he was not required to do
    so: see
R. v. R.A
.
, 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 45, affd 2018 SCC
    13, [2018] 1 S.C.R. 307.

[47]

The trial judge responded to the purported conflicts
    in the evidence between V.M., W.M., and W.M.(1) that were relied upon by trial
    counsel in his final submissions. The trial judge evaluated the evidence of all
    three witnesses in light of the dated allegations, reaching back to 2002 to 2004,
    when V.M. was a young teenager and W.M.(1) was a child. I see no error in the
    trial judges approach. There is no indication that he was unduly tolerant or
    forbearing.

Motives to fabricate

[48]

Although framed as an
indicium
of uneven scrutiny, the
    appellant faults the trial judge for not giving effect to the purported motives
    of the complainants to fabricate their allegations against the appellant. He
    submits that V.M.s childhood hatred for the appellant and her desire to
    support her sister were her motives to lie, whereas W.M.(1) made up the
    allegations to escape punishment for truancy.

[49]

There was no doubt that V.M. did not like the
    appellant. The appellant knew this and did not like V.M. The appellant contends
    that this motivated V.M. to allege sexual abuse against him years after his
    relationship with her mother had ended, an outcome that pleased V.M. According
    to the appellant, this nascent motive was only acted upon when W.M.(1) made her
    disclosure, apparently triggered by something completely unrelated. The trial
    judge was entitled to reject these alleged motives as far-fetched.

[50]

It is in this context that the appellant submits
    that the trial judge dealt unfairly with V.M.s evidence, especially concerning
    the things she said to the appellant as a child. The trial judge addressed this
    submission in the following way, at para. 164:

I found that V.M. was candid with the court
    when she admitted she did have gaps in her memory and was not prepared to fill
    the gaps with untruths
. V.M. also admitted to
    unflattering aspects to her personality when she was a teenager.
In my view,
    the name calling was not just indicative of a jealous teenage girl but had
    borderline racist overtones.
V.M. detested the foods which he ate and the
    way he prepared meals. In addition, she made fun of his accent.
In my view,
    these admissions enhanced her credibility
. [Emphasis added.]

[51]

The appellant complains that the trial judge gave
    V.M. credit for being racist, when it should have undermined her trustworthiness.
    I disagree. In this passage, the trial judge dealt with a number of aspects of
    V.M.s evidence, including her candid admission to behaviour that reflected
    poorly on her and her refusal to fill in the gaps when she could not remember
    certain things.

[52]

The appellant further suggests that the trial
    judge mischaracterized V.M.s willingness to admit her faults, especially with
    respect to her treatment of the appellant. Instead of being forthcoming, V.M.
    only admitted unfavourable aspects when pressed in cross-examination. This was
    all laid out before the trial judge and he was entitled to view the evidence as
    he did.

[53]

Moreover, it is important to have regard for how
    this issue was addressed at trial. Trial counsel did not suggest to V.M. that
    she was racist; nor did counsel ask the trial judge to characterize her
    treatment of the appellant as racist. V.M. was 12 to 14 years old at the time. The
    trial judge recognized the obvious impropriety in what she said to the
    appellant and he used the expression borderline racist of his own accord. His
    failure to characterize this misbehaviour of a child in stronger language, with
    a greater impact on her trustworthiness many years later, is not indicative of
    uneven scrutiny.

[54]

Turning to W.M.(1)s imputed motive to lie, the
    trial judge was unconvinced and explained why he was of this view. As he said,
    at paras. 165-166:

I also have difficulty with the defence
    companion theory that W.M.(1) was in so much hot water with her mother and was
    on the cusp of losing phone and computer privileges that she chose the nuclear
    option and concocted a scheme, with her sister to point the finger of blame at
    [Mr. H.]. W.M. questioned W.M.(1) if she was being bullied at her new school or
    if there were any other problems.
It seemed logical that she could have escaped
    her mothers wrath by availing herself to other excuses or explanations in
    order to get out of trouble.
Moreover, W.M.(1) had no credible reason years
    later (absent the allegations) to hate [Mr. H.] that much and falsely accuse
    him of sexual assault. W.M.(1) testified that she was ambivalent towards [Mr.
    H.] notwithstanding that she was cognizant of the fact that V.M. did not like [Mr.
    H.].

In my view, the defence submission that
    W.M.(1) picked [Mr. H.] as the scapegoat is untenable when compared to [Mr.
    H.s] testimony regarding his relationship with W.M.(1). [Mr. H.] testified
    that W.M.(1) did not dislike him. In fact, he testified that W.M.(1) loved him
    and there were no problems in their relationship when he broke up with W.M.
I
    agree with the Crowns submissions that it made no sense that even though
    W.M.(1) was aware of V.M.s hatred towards [Mr. H.] that years later, according
    to the defence, W.M.(1) exacted her revenge.
[Emphasis added.]

[55]

Given the positive relationship between W.M.(1)
    and the appellant, and in view of the passage of time between the end of the
    relationship and the disclosure, the alleged motive was, at best, weak. The
    trial judge was entitled to reject it. His failure to buy into this theory is
    not indicative of an unbalanced approach.

Implausible nature of the
    assaults

[56]

The appellant submits that the trial judge
    overlooked the implausible nature of the abuse of V.M., which the appellant characterizes
    as the height of audaciousness. Given the hostility she had for the
    appellant, it made her subsequent allegations implausible, according to the
    appellant.

[57]

The appellant takes issue with the following
    passage from the trial judges reasons. In discussing V.M.s credibility, he
    said at para. 162:

The defence argued that given that there were
    open hostilities between [Mr. H.] and V.M. it defied credulity that [Mr. H.]
    was that intrepid to enter V.M.s bedroom during the night.
On its face it
    was an intriguing argument. However, another reasonable inference could be that
    [Mr. H.] had engaged in a regular routine of abuse and since V.M. did not
    complain it may have emboldened him.
[Emphasis added.]

[58]

This conclusion was open to the trial judge on
    the evidence. V.M. testified that although she disliked the appellant, she was
    not able to disclose the abuse, especially given her mothers love for the
    appellant. Moreover, V.M. testified that, while she did not like the appellant
    from the beginning, her antipathy for him became more intense after the sexual
    abuse started. Accordingly, I reject the appellants expansive contention that
    this portion of the trial judges reasons is indicative of a pattern of taking
    every fact or constellation of facts and attaching the most sinister possible
    inference against [Mr. H.].

V.M.s

propensity to cry wolf and previous false allegations

[59]

The appellant submits in his factum that,
    [V.M.] did not simply have a motive to lie; she had
both a motive to lie
and a
propensity to lie
. [Emphasis in the
    original.] The appellant further submits that her own mother conceded she had
    a propensity to lie.

[60]

First, this is not a fair characterization of
    what W.M. said of her daughter. W.M. agreed that, although V.M. was the sort
    of kid who would cry wolf, she was at pains to stress, numerous times, that
    this occurred when she was little and it was only with respect to little
    things and not big things.

[61]

The appellant points to an incident in the house
    when the appellant and V.M. walked past each other and V.M. said, Hey, he
    touched my boob. The appellant submits that W.M. fortunately witnessed the
    incident and was sure that nothing had happened. But this view came from the
    appellant. The appellant alleged that W.M. and V.M. were evasive about the
    incident but they did not deny that it happened. The evidence did not give a
    clear picture of what transpired at the time. The trial judges failure to
    mention this vague body of evidence is not indicative of differing levels of
    scrutiny.

[62]

The appellant makes the same argument in
    relation to another alleged incident where V.M. said that the appellant threw a
    phone at her after she had called him a pervert. The appellant remembered the
    pervert reference but denied throwing his phone at V.M. W.M. had a memory of
    the pervert remark, but no memory of a phone being thrown.

[63]

It is important to consider how this evidence emerged.
    The defence raised the issue in the cross-examination of V.M. in an attempt to
    establish an example of a made-up allegation 
i.e.
, that the appellant threw a phone at her. The appellant submits,
    One would have thought that [W.M.] would remember such a memorable incident. A
    more plausible inference is that this incident never took place and was another
    example of [V.M.s] lies. Once again, this submission quibbles with the
    credibility findings of the trial judge. It also ignores that it was his
    province to accept some, none, or all of a witness evidence. This evidence was
    not referenced in the closing submissions of the Crown or the defence. It was
    not important.

The complainants evasiveness

[64]

The appellant challenges the trial judges finding
    that the complainants testified in a thoughtful and balanced way. He submits
    that this was unfair because his own testimony was characterized as evasive
    and combative. He relies on the fact that the complaints often refused to
    answer questions with I dont know or I cant remember. Apparently, this
    type of response was collectively invoked 400 times by the complainants, in response
    to questions about things that the complainants could be expected to remember.

[65]

The appellant may believe the complainants were
    evasive, but the trial judge did not. He was entitled to reach this conclusion.
    There are a number of reasons why it is not indicative of a skewed approach.
    First, the complainants testified about events that happened in 2002 to 2004,
    when they were both young. Second, a witness response of I dont know or I
    dont remember does not necessarily amount to a refusal to answer. Third, without
    more, the number of times that these types of answers were given is unhelpful.
    The appellant also asserted a lack of memory numerous times in his testimony.
    As he said at one point in his cross-examination, There are things I remember
    and there are things I forget. Lastly, trial counsel did not urge the trial
    judge to make this finding about the complainants, presumably because of the
    appellants responses along the same lines.

(b)

The Appellants Evidence

[66]

The appellant points to the trial judges
    findings about his own evidence as indicative of an unbalanced approach. The
    appellant submits that the trial judge fixated on trivial inconsistencies. He
    also submits that the trial judge misapprehended the evidence in relation to
    the first two examples discussed below (Infrequency of staying overnight and
    Recalling events that defied belief). This overlaps with a separate ground of
    appeal dealing with misapprehensions of the evidence. I will deal with both
    grounds together.

Infrequency of staying overnight

[67]

As noted above, the frequency with which the
    appellant was at W.M.s house, and how often he stayed over, was contentious. It
    impacted on the plausibility of V.M.s evidence because she testified that the
    appellant sexually assaulted her, Too many times to count. It became a regular
    thing. This evidence was not important to W.M.(1)s allegations because she
    said she was sexually assaulted about four times in total.

[68]

The appellant submits that the manner in which
    the trial judge handled this evidence reflects the application of an unduly
    harsh standard as it relates to his consideration of the appellants evidence.
    He submits that the trial judge should have accepted his own assertion of how
    often he stayed over because it was corroborated by W.M.

[69]

There was a good deal of evidence at trial about
    how often the appellant stayed overnight, some of which is reviewed above. To
    recap:

·

W.M. testified that the appellant stayed over
    once a week or once every two weeks;

·

V.M. testified that the abuse happened on both
    weekends and weekdays. She told the police that the appellant touched her two
    to three times a week. She disagreed with her mothers estimate of how often
    the appellant stayed overnight;

·

W.M.(1) said that the appellant stayed over once
    or twice a week; and

·

The appellant testified he stayed over about
    three times a month  sometimes twice a month; sometimes four times a month.

[70]

Because W.M.s evidence was consistent with the
    appellants estimate, the appellant contends that it was unfair for the trial
    judge to reject the appellants evidence on this point, reflecting a lack of
    balance in the trial judges reasons as a whole. I disagree.

[71]

When first addressing this issue, the trial
    judge said, at para. 8: According to W.M. [Mr. H.] stayed over approximately
    two or three times a week. This seems to have been a typographical mistake; it
    was V.M. who estimated this frequency, not her mother. Nevertheless, the trial
    judge accurately recorded W.M.s frequency evidence in para. 43 of his reasons:
    After they initially dated [W.M.] estimated that [Mr. H.] stayed over
    approximately once every week or every two weeks until the end of the
    relationship. Thus, the trial judge understood the various frequency estimates
    in the evidence. He did not misapprehend W.M.s evidence.

[72]

However, more needs to be said about W.M.s
    evidence as a whole, and how the trial judge approached it. When the trial
    judge first addressed her evidence in his reasons, he said the following at
    para. 41: I do not intend to spend a lot of time outlining W.M.s evidence as
    will be explained further on in my reasons. In summarizing the parties
    positions, the trial judge wrote, at para. 107:

It was conceded by both the Crown and the
    defence that W.M.s evidence had significant limitations due to her inability
    to recall conversations and specific events.
The Crown urged that the court
    should not accept her evidence unless it was corroborated or supported by other
    testimony from other witnesses or by common sense
. The Crown suggested that
    there were aspects of her evidence that the court can accept that pertained to
    the sleeping arrangements and her schedule. [Emphasis added.]

[73]

It is clear from his reasons that the trial
    judge understood W.M.s evidence. However, and while he did not say so explicitly,
    he rejected her evidence on this point. This was not unfair, nor was it indicative
    of uneven scrutiny.

[74]

There were other aspects of her evidence to
    which he did not refer which, if accepted, would have been damaging to the
    appellants position. For instance, the appellant said that he never stayed
    over during the week; W.M. said that he did, but not frequently. W.M. said
    there was a 2-4 week trial period when they tried living together; the
    appellant said this never happened. W.M. said that the relationship had been
    serious and they might have married had the appellants family approved; the
    appellant said marriage had never been a possibility. Perhaps most importantly,
    W.M. testified that the appellant would go to her childrens bedrooms to tuck
    them in at night; the appellant denied this happened. On this last point,
    W.M.s evidence was potentially very damning to the appellant, who claimed
    minimal opportunities to commit the offences, and insisted on never leaving the
    master bedroom except to use the bathroom after having sex with W.M.

[75]

It might have been preferable had the trial
    judge better explained why he did not rely upon W.M.s evidence of the
    frequency of overnight stays. However, his choice not to do was rational and
    his overall treatment of her evidence was very fair to the appellant. Far from
    engaging in an unbalanced assessment of the evidence, as the appellant
    suggests, the trial judges overall treatment of W.M.s evidence was to the
    benefit of the appellant.

Recalling events that defied
    belief

[76]

As another example of uneven scrutiny, the
    appellant points to the trial judges rejection of his claim that V.M. had a
    lock on her bedroom door. The appellant explained a confrontation between V.M.
    and her mother when V.M. ran to her bedroom and locked the door behind her. The
    trial judge said the following about this part of his evidence, at para. 175:

I found [Mr. H.s] ability to recall details
    that he could not have possible known would be relevant sixteen (16) years
    later defied belief. For example, [Mr. H.] had a specific recollection that
    there was a lock on V.M.s door. He recalled an incident whereby V.M. ran into
    her bedroom and locked herself in her room. V.M. [
sic
, W.M.] demanded
    that she unlock the door, after V.M. [
sic
, W.M.] could not unlock it
    from the outside with a pin. Eventually the incident ended by V.M. unlocking
    the door.
I found it odd that [Mr. H.] recalled such an insignificant event so
    many years later. In my view, this was another attempt to demonstrate limited
    access to a bedroom. However, V.M. testified that she did not have a lock on
    her door as she slept in a converted office.
[Emphasis added.]

[77]

The appellant takes issue with this passage. He
    says the issue should have been decided differently: There is nothing bizarre
    about remembering such an incident. It would have been more unusual if he had
    no memory of what appeared to be a significant confrontation. It must be
    remembered that the trial judge made this assessment in the light of his
    general findings that the appellant had sought to minimize his opportunities to
    commit the offences against the complainants. The conclusions he reached were available
    to him on the record.

[78]

The appellant also submits that the trial judge
    misapprehended the evidence on this issue. He says that the evidence confirmed his
    view that there was a lock on this bedroom door. But the evidence was
    conflicting. W.M. testified that she did not remember whether the kids rooms
    had locks. However, she later said that V.M. would lock her door after
    arguments. W.M.(1) testified that she did not think V.M. had a lock on her
    door. V.M. flatly denied the suggestion: There was not a lock on my door, I
    was not allowed to have locks.

[79]

Moreover, the trial judges focus was not on
    whether or not there was a lock on V.M.s bedroom door, but the appellants
    claim to have remembered such a trivial detail, years later, and especially in
    light of the trial judges broader conclusion that the appellant attempted to
    distance himself from opportunities to commit the offences. His reasons reveal
    no error, nor any inclination to hold the appellants evidence to a higher
    standard.

The trip to the beach

[80]

The appellant takes issue with the trial judges
    appraisal of part of the appellants cross-examination concerning a visit to
    the beach. The issue unfolded during the following exchange:

Q.:     There was a time in fact you took
    [W.M.(1)] to the beach, is that correct?

A.:     I took [W.M.(1)] to the beach you say?

Q.:     Yes.

A.:     No.

[81]

The appellant was then confronted with his
    testimony from his previous trial in which he said he had gone to the beach
    with W.M.(1), V.M., and W.M. In the ensuing exchange, the appellant insisted
    that he had answered the Crowns question accurately  the Crown had only asked
    about W.M.(1) alone, not W.M.(1), V.M., and W.M.

[82]

The trial Crown pointed to this exchange as
    indicative of the appellants insincerity. The trial judge agreed and said, at
    para. 173:

When he was confronted with his testimony in
    his previous trial that in fact he admitted that he had taken the entire family
    to the beach, however, in my view he double downed when he responded that he
    was asked if he only took W.M.(1) to the beach.
While this may have been a
    clever response, which perhaps technically may be accurate to the specific
    question poised, it was an unpersuasive answer that was intended to not fully
    answer the question. In my view, if [Mr. H.] wanted to be open and honest in
    his evidence he should have fully answered the question, rather than focusing
    on a slight language distinction to cover the fact that he did not recall
    whether or not he took W.M.(1) to the beach.
[Emphasis added.]

[83]

The trial judge was entitled to reach this
    finding on the record. Moreover, it must be considered in view of his overall
    impression of the appellant as combative and flippant during
    cross-examination. The trial judge had the advantage of being present during
    this exchange. Allowing for the fact that other judges may have treated the
    evidence differently, it cannot be said that the trial judges observations
    were inaccurate or unfair.

Leaving the bedroom during the
    night

[84]

The appellant submits that the trial judge was
    too harsh in his criticism of his evidence on the issue of whether he ever left
    the bedroom at night. The appellant testified that, following intimacies with
    W.M., he would use the bathroom. The appellant was asked about his testimony at
    his first trial when he said that he never left the room. He clarified that,
    once he and W.M. had gone to sleep, he never left the bedroom. This exchange
    was made problematic by the trial Crowns tendency to summarize the questions
    and answers from the first trial, rather than reading them
verbatim
, as defence counsel quite
    properly insisted.

[85]

The trial judge agreed with defence counsels
    objection as to the
form
of the cross-examination; nonetheless, he was still unimpressed by
    the appellants evidence on this point. As he said, at para. 174:

I also found that during the entirety of the
    relationship [Mr. H.s] claim that he never left the bedroom at night other
    than when he went to the washroom after sex difficult to accept. His previous
    trial testimony, which was put to him, made it clear that he never left the
    bedroom after going to sleep. However, in his current testimony when he said that
    he did leave the bedroom after sex he did go to the washroom. There was a
    defence objection that the Crowns question was about not leaving the bedroom
    after sex. However, [Mr. H.] admitted that he never left the bedroom at all.
I
    simply find this hard to believe. In my view, it was another transparent
    example of [Mr. H.] denying that he had an exclusive opportunity to carry out
    the acts alleged.
[Emphasis added.]

[86]

This finding was open to the trial judge to make
    on the entirety of the record. It does not reflect the application of an unduly
    exacting standard of scrutiny.

(c)

Conclusion

[87]

The appellant has failed to make out the case
    for uneven scrutiny. The complaint he makes is not so much about the
    application of discordant standards as it is about the complainants being
    believed when he was not. In essence, the appellants claim was an assertion of
    an unreasonable verdict. Referring to the shortcomings in the evidence of the
    complainants, the appellant submits in his factum: Any number of these flaws
    would have been ample basis to raise a reasonable doubt. The cumulative
    evidence of these credibility flaws made the verdict unreasonable.

[88]

In my view, the verdicts were neither
    unreasonable, nor were they the product of a flawed or unfair fact-finding
    process. I would dismiss this ground of appeal.

(2)

Undue Reliance on Demeanour Evidence

[89]

The appellant submits that the trial judge
    placed undue emphasis on evidence of demeanour when he characterized the
    appellant as uneasy and guarded. The appellant asserts that, Particularly
    given the cultural and linguistic differences  [Mr. H.] is a relatively recent
    immigrant who speaks English as a second language  the Court should be mindful
    of overemphasizing demeanour and making assumptions about culturally
    appropriate conduct.

[90]

Respectfully, there is no merit in this
    submission. There was not a hint in the trial judges reasons that he made any
    assumptions about the appellants linguistic abilities. The appellant declined
    the assistance of the Assyrian interpreter who had originally been requested
    for the trial. There is no indication in the record that the appellant
    struggled to express himself. Moreover, I fail to see any connection between
    the trial judges use of the terms uneasy or guarded and the appellants
    allusion to culturally appropriate conduct.

[91]

Triers of fact, whether judges or jurors, must
    guard against
undue
reliance on demeanour. That does not mean that demeanour is irrelevant. It is
    one of the factors that a trial judge may consider in evaluating a witnesss
    credibility:
R. v. O.M
.
, 2014 ONCA 503, 313 C.C.C. (3d) 5, at
    para. 34;
R. v. T.H
.
, 2016 ONCA 439, at para. 4. In this case, demeanour was just one of
    the factors that the trial judge relied upon in making his credibility
    assessments. He did not over-emphasize demeanour, nor did he treat it as a
    controlling factor.

[92]

I would reject this ground of appeal.

(3)

Misuse of a Prior Statement

[93]

The appellant submits that the trial judge erred
    in using a prior statement made by V.M. as confirmatory of her trial testimony.
    This ground of appeal relates to the incident in which V.M. called the
    appellant a pervert. This evidence was adduced by the defence in its
    cross-examination of V.M. in an effort to demonstrate that she made things up
    about the appellant.

[94]

In his reasons for judgment, the trial judge referred
    to this incident as quite telling. He said: I agree that there was no
    confirmatory evidence that [Mr. H.] threw a telephone in response. However,
    W.M., V.M., and [Mr. H.] agreed that the word pervert had been used at some
    point in time. I accept as a fact that at the time V.M. was reaching out to her
    mother.

[95]

The trial judge was tracking the language of
    V.M. in her assessment of the incident. It is important to appreciate the
    context in which the statement was made. V.M. said she made the comment because
    the appellant watched television shows that she thought were inappropriate.
    This would embarrass her when she had company over. V.M. explained:

It wasn't something that was ever on in my
    house prior to thatI didnt know how to handle the situation because my
    relationship with my mother at the time was rocky at best, and I felt helpless,
    and I  it was like my way of reaching out without saying anything, but
    obviously it didn't set off any alarms for anyone.

[96]

Moreover, the trial judges finding was made
    after a finding in favour of the appellant, based on the totality of the
    evidence, that there was no confirmation for V.M.s evidence that the appellant
    threw his phone at her. It would have been preferable had the trial judge further
    explained why he referred to the reaching out statement. However, there is no
    indication that it played any further role in his analysis, nor that he used it
    to bolster V.M.s credibility.

[97]

I would not give effect to this ground of
    appeal.

(4)

Improper Common Sense Assumptions about Human
    Behaviour

[98]

The appellant submits that the trial judge erred
    in making a common sense assumption about the nature of the appellants
    relationship with W.M. In his consideration of how often the appellant stayed
    overnight, and whether he stayed over on weeknights (which the appellant
    denied), the trial judge referenced the strong feelings that the appellant said
    that he had for W.M. at the time.

[99]

In cross-examination, the appellant agreed with
    the suggestion that he and W.M. wanted to spend basically all the time [they]
    could together. The trial judge considered this evidence along with the
    evidence that the appellant often went to W.M.s house for dinner during the
    week, kept underwear and a t-shirt at the house, and that W.M.s house was
    close to the appellants own residence, his place of employment, and the
    college he attended. But as the trial judge said, at para. 172, It was
    difficult to accept that never once given all the circumstances, as he
    testified, [Mr. H.] never slept over on a week night even though he admitted
    that he wanted to spend as much time as he could with W.M.

[100]

The trial judge did not make unwarranted assumptions about human
    behaviour. He evaluated the evidence on this issue and highlighted a
    contradiction between the appellants stated actions and his purported state of
    mind. The appellant testified that he wanted to spend as much time as he could
    with W.M., but he also testified that he did not even try to stay overnight
    more frequently. Again, these findings must be considered within the trial
    judges overall assessment that the appellant sought to minimize his access and
    opportunities to commit the offences.

[101]

I would reject this ground of appeal.

(5)

Delayed Disclosure

[102]

The appellant submits that the trial judge erred in not giving
    effect to the argument that V.M.s delay in disclosure should have given the trial
    judge pause for concern because she was an assertive person who was not shy
    about criticizing the appellant. Such a person would be expected to make a
    timely disclosure, so the argument goes. The trial judge disagreed, at para.
    160:

V.M. was a strong minded and opinionated
    teenager, however, I do not accept that just because she was an in your face
    teenager that should have made her more inclined to disclose the alleged sexual
    abuse.
This was close to the stereotypical reasoning in sexual assault cases
    that courts strive to avoid in engaging.
The defence promoted the idea [that]
    V.M. always stood up for herself and in fact was extremely disrespectful and
    rude to [Mr. H.], so why did she not disclose the allegations?
Whether as a
    teenage girl V.M. was insecure about her relationship with her mother or
    whether both complainants were not emotionally equipped to deal with the sexual
    abuse and to tell anyone about it, was neither here nor there. The delay in
    disclosure standing alone does not give rise to an adverse inference against
    credibility.
[Emphasis added.]

[103]

In reaching this conclusion, the trial judge was applying the
    principles articulated in
R. v. D.D
.
, 2000 SCC 43, [2000] 2 S.C.R. 275.
    Writing for the majority, Major J. held that, in order to dispel the
    possibility of stereotypical reasoning, a trial judge should instruct the jury
    that there is no inviolable rule on how people who are the victims of trauma
    like a sexual assault will behave; the timing of the complaint is simply one
    circumstances to consider in the factual mosaic of a particular case, and [a]
    delay in disclosure, standing alone, will never give rise to an adverse
    inference against the credibility of the complainant:
D.D
.
, at
    para. 65.

[104]

The appellant attempts to sidestep this authority by asserting that
    it was not suggested that delayed disclosure alone undermined V.M.s
    credibility, but rather it was highly unlikely that 
this complainant
would have delayed
    disclosure given everything else we know about her. [Emphasis in the
    original.]

[105]

The distinction the appellant attempts to draw is unconvincing.
    Every case involves the application of the principles in
D.D
.
to
    a specific complainant (
i.e.
, 
this

complainant
). To the extent that
D.D
.
should not apply to V.M. because she was an assertive teenager would turn this
    line of authority on its head. It would mean that
D.D
.
would only apply to cases involving non-aggressive
    or demure complainants, and not those who are assertive or aggressive. I reject
    this proposition.

[106]

I would dismiss this ground of appeal.

(6)

Similar Fact Evidence

[107]

The appellant submits that the trial judge erred in allowing the
    Crowns similar act application. However, as noted in para. 37, above, the
    trial judge found that the allegations had been proven against the appellant
    beyond a reasonable doubt without having to rely upon this mode of reasoning.
    In the circumstances, it is not necessary to address this ground of appeal.

E.

disposition

[108]

I would dismiss the appeal.

Released: JS June 23, 2020

Gary Trotter J.A.

I agree. Janet Simmons
    J.A.

I agree. S.E. Pepall
    J.A.





[1]

This was the appellants second trial. After being convicted
    at his first trial, the appellant successfully appealed his convictions to this
    court: see
R. v. E.H.
, 2017 ONCA 423.


