



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(1), (2), or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may order the
    exclusion of all or any members of the public from the court room for all or
    part of the proceedings if the judge or justice is of the opinion that such an
    order is in the interest of public morals, the maintenance of order or the
    proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)     For the purpose of subsection (1), the
    proper administration of justice includes ensuring that.

(a) the interests of the witnesses under the age
    of eighteen years   are safeguarded in all proceedings; and

(b) justice system participants who are involved
    in the proceedings are protected.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, reference to the circumstances of the
    case, the reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c.
    93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).




COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. D.B., 2013 ONCA 578

DATE: 20130926

DOCKET: C54907

MacPherson, LaForme and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. B. (aka D. W. P. M.)

Appellant

Clayton C. Ruby and Nader R. Hasan, for the appellant

Shawn Porter, for the respondent

Heard: February 26, 2013

On appeal from the conviction entered on October 19, 2007
    and from the sentence imposed on November 20, 2009 by Justice George T. Valin
    of the Superior Court of Justice.

Pepall
    J.A.:

A.      OVERVIEW

[1]

The appellant was convicted of sexual assault after having been found
    guilty of touching the complainant on her thigh (over her clothes) and chest
    (under her clothes).  As a result of that conviction and prior convictions in
    1999, he was designated a long-term offender and is now subject to a long-term
    supervision order of eight years.  He appeals his conviction for sexual assault
    and his designation as a long-term offender.  He does not appeal his sentence
    of 30 months, having already completed that sentence.

[2]

The appellant advances two grounds of appeal against conviction. 
    Firstly, he argues that the trial judge erred by basing the verdict on hearsay
    evidence.  Secondly, he submits that the verdict was unreasonable because the
    trial judge convicted him on the basis of the complainants evidence standing
    alone even though he had concluded that it would be dangerous to do so. On
    appeal, he abandoned his argument that the trial judge erred by failing to
    consider the defences submission that the complainants testimony was fabricated.

[3]

The appellant advances two grounds of appeal against his long-term
    offender designation.  Firstly, he argues that the trial judge erred in
    ordering that the appellant be assessed pursuant to s. 752.1 of the
Criminal
    Code
, R
.S.C. 1985, c. C-46,
for the purposes of
    a long-term or dangerous offender designation.  Secondly, he submits that the
    long-term offender designation was unreasonable because two years was an inappropriate
    sentence for the predicate offence.

[4]

For the reasons that follow, I would allow the appeal
    against conviction, set aside the verdict of guilty and order a new trial. As a
    result, there is no need to address the sentence appeal.

B.      EVIDENCE
    RELATING TO THE CONVICTION

[5]

The Crowns evidence consisted primarily of the testimony of the
    complainant and her mother. The defence did not call any evidence.

[6]

As found by the trial judge, the complainant was a 20-year-old
    drug addict with a young son.  She had been addicted to drugs for about three
    years. She sometimes lived with her parents and sometimes lived on the streets.

[7]

The complainants mother testified that on the afternoon of February 21,
    2007, the appellant arrived at her house along with her daughter. He had driven
    her there. The complainants mother testified that she talked with the
    appellant while her daughter packed some of her clothes and some baby toys. She
    acknowledged that her daughter was under the influence of drugs at the time.
    She testified in chief that her daughter was just in another world and that
    it was like she didnt even notice me. The complainant left in a vehicle
    driven by the appellant.

[8]

The mother testified that at around 5:30 a.m. the next morning, she
    received a phone call from her daughter. The call was made on the appellants
    cell phone.  Crown counsel elicited for narrative purposes what the complainant
    said to her during the call.  The trial judge recounted the gist of the
    complainants conversation as follows:

She told her mother she was with the accused, that she did not
    know where she was, and that she wanted to come home. She sounded frightened.
    Her mother could hear her speaking with the accused, whose voice she recognized
    from having met him a few hours earlier. When the victim asked the accused
    where they were, the response her mother heard was evasive. The accused said he
    was taking her to see the stars. When the victim asked the accused to drive her
    home, her mother heard him say, I am too busy right now.

[9]

The mother testified that during the conversation, her daughter
    said hes touching me and Im scared.

[10]

The
    complainants mother estimated the call lasted at least 15 minutes. After the
    call ended, the complainants mother phoned 911.

[11]

The
    complainant also testified. The trial had to be adjourned a day to permit her
    to do so because the Crown was concerned that she was under the influence of
    drugs.

[12]

The
    trial judge summarized the complainants testimony as follows:

The victim testified that, after her funds ran out on February
    21st, the accused had purchased drugs and alcohol for her.

Eventually, he drove her to a secluded place in the city. She
    was very high. She did not know where she was. It was dark. The accused would
    not tell her where she was. She was frightened. She called her mother on the
    accuseds cell phone and spoke to her for about 20 minutes.

During that time the accused touched her on her upper legs over
    top of her clothes and touched her breast underneath her clothes. She did not
    invite the accused to do that. She did not consent to him doing it. She was
    frightened by it and felt violated.

[13]

The
    complainant testified in-chief that the appellant operated an unofficial taxi
    service. Late in the afternoon of February 21, 2007, a friend of hers arranged
    for the appellant to pick her up at a party. She was intoxicated and high on
    drugs. The appellant drove her to her parents home. She was planning to move
    out and so she packed some belongings for herself and her son.

[14]

The
    complainants evidence was that she spent the evening of February 21 and the
    early morning of February 22 with the appellant, who drove her to various
    destinations to buy crack and cocaine for her.  He also picked up whiskey from
    his mothers house.

[15]

The
    complainant went on to testify that the appellant drove her to an area where
    there were no roads. It was dark. She had the appellants cell phone and was
    talking to her mother. The appellant touched her on her upper leg, on top of
    her clothing, and on her chest, under her clothing. She told him to stop. She
    then got out of the vehicle and dropped the phone and told him she was walking.
    The appellant said he would drive her as it was too far to walk. She did not
    remember driving back into town. The appellant dropped her off at the home of
    her sons uncle. When the complainant was asked in-chief how she was feeling towards
    the appellant, she responded: violated.

[16]

In
    cross-examination, the complainant acknowledged that the drugs she was
    dependant on affected her memory. She further acknowledged that she did not
    have a clear recollection of the discussion on the cell phone with her mother. 
    She indicated that she was on drugs and intoxicated, and was in and out of
    consciousness.

[17]

The
    police arrived at the complainants uncles house early in the morning and
    arrested the complainant on a charge of breach of recognizance. At the time of
    the offence, the complainant had been released on a recognizance of bail that
    required her to live at her parents residence. She was taken to the police
    station.

[18]

The
    complainant testified that, while at the station, the investigating police
    officer told her about how dangerous the appellant is and that he had almost
    killed another girl. She testified that the officer told her that she would not
    have to go to jail for the breach, that the appellant was dangerous, and that
    he could hurt some other little kids, and she was given guilt trips all over.

[19]

In
    cross-examination, defence counsel elicited certain details from the
    complainant about her videotaped statement to the police. The Crown did not
    seek to enter the statement at the trial. The complainant acknowledged that
    during the police interview, she was emotional, crying, yelling and swearing.
    She explained she was coming down off drugs and coming down from
    (unintelligible) doing something I didnt want done. She told the officer that
    she was on a combination of cocaine and morphine, which she had injected.

[20]

The
    complainant acknowledged having told the officer that she did not want to talk
    about the events of the night. She agreed she tried to negotiate assurances
    from the officer that her mother was coming, that she would be released from
    custody, and that the police would assist her in finding a place to live in
    exchange for providing information to the officer.

[21]

The
    complainant understood from the police officer that either the charge against
    her for breach of recognizance would not proceed, would be withdrawn, or she
    would be found not guilty. This did not materialize, however, as the
    complainant was required to remain in custody and was later found guilty on a
    charge of breach of recognizance.

C.        TRIAL JUDGES
REASONS FOR CONVICTION

[22]

The
    trial judge noted that defence counsel had conceded that the conduct of the
    appellant, if proven beyond a reasonable doubt, constituted sexual assault.
    Defence counsel argued there was insufficient credible and reliable evidence to
    establish guilt beyond a reasonable doubt. Defence counsel further argued that
    the complainants evidence was neither credible nor reliable. In addition, the
    evidence of the complainants mother was unreliable because she did not see
    what was going on in the vehicle while she was speaking on the phone to her
    daughter.

[23]

The
    trial judge noted that the complainants evidence of where, when, and how the
    appellant touched her private areas inappropriately without her consent was
    uncontradicted and was not successfully challenged on cross-examination. 
    However, he concluded that it would be dangerous and unsafe to find the
    appellant guilty based on the complainants evidence standing alone, given her
    condition of intoxication, her generally poor memory of other events that
    occurred before and after the alleged assault, and her demeanour while being
    interviewed by the police.

[24]

The
    trial judge went on to enumerate other independent evidence that is capable of
    confirming the victims complaint regarding the sexual assault:

1.

The appellants cell phone records confirmed that a call was
    placed to the residence of the complainants parents at 6:10 a.m. on February
    22, lasting over 20 minutes.

2.

The police seized a purse and clothing belonging to the
    complainant from the appellants vehicle when he was arrested on February 23.

3.

The complainants mother recognized the appellants voice during
    the telephone call.

4.

In response to the question inquiring as to their location, the
    complainants mother heard the appellant say that he had taken the complainant
    out to see the stars. This was suspicious given it was 6:10 a.m. and
    considering that he had told her he was too busy to drive her home.

5.

The complainant told her mother that the appellant was touching
    her and that she was scared.

[25]

With respect to this last piece of evidence, the trial judge went
    on to state:

I find that the mothers evidence is capable of confirming the
    victims allegations that the accused sexually assaulted her.  No matter how
    one views her conduct at the police station while she was being interviewed by
    the police, it cannot be said that the victim fabricated her allegations about
    what the accused had done to her in his vehicle earlier that day.

[26]

The
    trial judge concluded that the Crown had proven the appellants guilt beyond a
    reasonable doubt and found him guilty of sexual assault.

D.      CONVICTION
    APPEAL

[27]

There
    are two issues to consider on the conviction appeal.  I will address each in
    turn.

(1)

Did
    the trial judge err by basing the verdict on hearsay evidence?

(a)

Positions of the Parties

[28]

The
    appellant submits that the trial judge based the conviction on the inadmissible
    hearsay testimony of the complainants mother. The latter testified that her
    daughter had told her over the phone that the appellant had touched her. No
    argument was made about the admissibility of this statement at trial because
    the Crown sought to introduce the statement only for narrative purposes and did
    not seek to rely on it for the truth of its contents.  Nonetheless, the trial
    judge improperly considered the statement for the truth of its contents and as
    corroborative of the complainants testimony, as reflected by his following
    statement:

Finally, the victim told her mother that the accused was
    touching her and that she was scared. I find that the mothers evidence is
    capable of confirming the victims allegations that the accused sexually
    assaulted her.

[29]

The
    respondent submits that the complainants prior statement to her mother was
    properly admitted and considered by the trial judge as part of the narrative
    and in rebuttal to an allegation by defence counsel of recent fabrication. The
    defence position at trial was that the complainant had made a false claim of
    sexual assault to obtain favourable treatment from the police. Evidence in
    support of this position was elicited in the cross-examination of the
    complainant. Defence counsel, in response to a question from the trial judge,
    agreed that the trial judge could consider the complainants previous statement
    in considering the defence submission that she had fabricated her allegation.
    When admitted to rebut an allegation of recent fabrication, a prior consistent
    statement has a positive effect on the assessment of a witnesss overall
    credibility.  As such, the trial judge did not use the prior statement for an
    improper purpose.


(b)

Analysis

[30]

Prior
    consistent statements are declarations made by witnesses before they take the
    stand that are consistent with the testimony they give while on the stand:
    David M. Paciocco, 
The Perils and
    Potential of Prior Consistent Statements: Lets Get It Right
(2013) 17 Can. Crim. L.R. 181, at p. 181.

[31]

Prior
    consistent statements are generally inadmissible.  Traditionally, they have
    been treated as inadmissible because they are out-of-court statements made in
    the absence of trial safeguards such as cross-examination and the taking of an
    oath or affirmation to tell the truth.  The hearsay rule precludes the
    admission of prior consistent statements for the truth of their contents.  Additionally,
    prior consistent statements lack probative value: see
R. v. Stirling,
2008 SCC 10, [2008] 1 S.C.R. 10,
at
    para. 5;
R. v.
Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788,
at para. 36.  Put differently,
    repetition of a statement by the same person does not render it more likely to
    be true or corroborative.  The repetition is self-serving and the source lacks
    independence.  Lastly, given that the evidence will have already been adduced
    at trial through oral testimony, exclusion of prior consistent statements
    serves the desirable objective of trial efficiency.

[32]

There
    are some exceptions to the rule that prior consistent statements are inadmissible. 
    The exceptions exist because the purpose behind exclusion is not served. The
    two exceptions raised on this appeal are narrative and recent fabrication.

[33]

Before
    the trial judge, defence counsel (who is not counsel on appeal) properly
    conceded that the complainants statement to her mother was admissible for
    narrative purposes, but contended that the statement could not be relied on for
    the truth of its contents. In closing submissions at trial, defence counsel
    accepted that although hearsay, the trial judge was entitled to consider the
    complainants prior statement to her mother, but argued that the trial judge
    could not use the initial utterance on the telephone to bolster what is
    otherwise unreliable because the source is the same.

[34]

The
    statement was admissible both as narrative and to rebut the allegation of recent
    fabrication. As narrative, the statement is admitted as evidence of the fact
    that something was said or heard, but not tendered for the truth of what was
    said or heard:
Dinardo
, at para. 37,
R. v. J.A.T.
, 2012 ONCA
    177, 288 C.C.C. (3d) 1, at para. 99;
R. v. Magloir
, 2003 NSCA 74, 178
    C.C.C. (3d) 310, at para. 23.

[35]

In
R. v. OConnor
(1995), 25 O.R. (3d) 19 (C.A.), leave to appeal to
    S.C.C. refused, [1995] S.C.C.A. No. 460, Finlayson J.A. described the nature of
    an allegation of recent fabrication, at pp. 28-29:

[A]n allegation of recent fabrication is no more than an
    allegation that the complainant has made up a false story to meet the
    exigencies of the case. The word recent means that the complainants evidence
    has been invented or fabricated after the events in question and thus is a
    recent invention or fabrication. [Citation omitted.]

[36]

Where
    there is an allegation of recent fabrication in connection with a witness, a
    prior consistent statement is admissible to demonstrate that the witnesss
    story was the same prior to the alleged fabrication. An allegation of recent
    fabrication may be either express or implied to permit the admission of the
    prior consistent statement. The prior consistent statement has probative value because
    it illustrates that the witnesss story was the same even before a motive to
    fabricate arose: see
Stirling
, at
    para. 5;
R. v. J.A.T.
, at para. 98.

[37]

A
    prior consistent statement that is admissible to rebut an allegation of recent
    fabrication is not admitted to prove the truth of its contents. Rather, it
    neutralizes the challenge or allegation of recent fabrication. The evidence of
    the prior consistent statement is used to establish that the challenge is in
    error, not to show that the statement is true or that the witness is likely
    telling the truth because they said the same thing before. In this sense, the
    admission of the prior consistent statement may impact positively on the
    witnesss credibility insofar as admission of the statement removes a motive of
    fabrication. As Bastarache J. stated on behalf of the Supreme Court of Canada
    in
Stirling
,
at para. 7:

However, a prior consistent statement that is admitted to rebut
    the suggestion of recent fabrication continues to lack any probative value
    beyond showing that the witnesss story did not change as a result of a new
    motive to fabricate. Importantly, it is impermissible to assume that because a
    witness has made the same statement in the past, he or she is more likely to be
    telling the truth, and any admitted prior consistent statements should not be
    assessed for the truth of their contents.

[38]

The
    Hon. Justice David Paciocco describes the operation of the recent fabrication
    exception in his aforementioned article as follows, at p. 191:

Recent fabrication is a rebuttal rule.  If at the end of the
    case the decision-maker believes the prior consistent statement to have been
    made, it will neutralize the challenge to the litigants case without in any
    way adding corroboration, confirmation, or affirmative weight to the credibility
    or reliability of the witness who was challenged.  Their evidence remains in
    the state it was before the failed recent fabrication challenge.

Judges must therefore be cautious to avoid language which
    suggests they are treating the prior consistent statement as adding to the
    credibility of the witness.  Where judges do use terms such as supports or bolsters
    or strengthens, so long as it is clear from their decision as a whole that
    they are simply suggesting that the evidence of the witness is supported or bolstered
    or strengthened in the limited sense that the prior consistent statement
    shows their evidence to be more believable than if the recent fabrication
    challenge went unanswered, there will be no error.  If the comments go farther
    and imply that the prior consistent statement adds affirmatively to the
    credibility of the witness, the judge will fall into error.

[39]

For
    the reasons that follow, I conclude that the trial judge did fall into such
    error and improperly based his verdict on the hearsay evidence elicited from
    the complainants mother.

[40]

The
    complainants telephone conversation with her mother was admissible both as
    narrative and to rebut the allegation of recent fabrication. That said, the
    sole use to which the trial judge could put the prior consistent statement was
    to support the complainants credibility to the extent of rebutting the
    allegation of recent fabrication; it could not be admitted or used as evidence
    of the truth of its contents.

[41]

As
    mentioned, the trial judge stated that given the complainants condition of
    intoxication, her generally poor memory of other events that occurred before
    and after the alleged assault, and her demeanor while being interviewed by the
    police, it would be dangerous and unsafe to find the accused guilty of the
    offence charged based on her evidence standing alone.  He then went on to find
    that the mothers evidence concerning what her daughter said to her confirmed
    the complainants allegation that the appellant had sexually assaulted her.  Again
    to repeat, the trial judge stated:

Finally, the victim told her mother that the accused was
    touching her and that she was scared. I find that the mothers evidence is
    capable of confirming the victims allegations that the accused sexually
    assaulted her.  No matter how one views her conduct at the police station while
    she was being interviewed by the police, it cannot be said that the victim
    fabricated her allegations about what the accused had done to her in his
    vehicle earlier that day.

[42]

The
    trial judges comments go beyond merely finding that the prior consistent
    statement shows the complainants evidence to be more believable because it was
    not a recent fabrication. He expressly treated the mothers evidence of what
    her daughter had told her as an independent piece of evidence capable of
    confirming the complainants allegation of sexual assault.  This was an
    impermissible use of the prior consistent statement.  Having concluded that it
    would be dangerous and unsafe to convict based on the evidence of the
    complainant alone, he then proceeded to use the hearsay evidence as confirmatory. 
    In my view, this was an error. As stated in
Stirling
, at paras. 11 and
    12:

This Court has found that [prior consistent] statements can be
    admitted 
in support of
the witnesss credibility (
Evans
,
    at p. 643 [
R. v. Evans
, [1993] 2 S.C.R. 629]). What is clear from all
    of these sources is that credibility is necessarily impacted - in a positive
    way - where admission of prior consistent statements removes a motive for fabrication.
Although it would clearly be flawed
    reasoning to conclude that removal of this motive leads to a conclusion that
    the witness is telling the truth
,
it is permissible for this
    factor to be taken into account as part of the larger assessment of credibility.

[43]

I
    would therefore give effect to this ground of appeal.

(2)

Was
    the Verdict Unreasonable?

(a)  Positions of the Parties

[44]

The
    appellant submits that while the trial judge concluded that it would be
    dangerous to find the appellant guilty based on the evidence of the complainant
    standing alone, he did just that because none of the other factors he
    enumerated corroborated her allegation that he sexually assaulted her. As noted
    above, the trial judge pointed to the following items of independent evidence:

1.

The appellants cell phone records confirmed that a call was
    placed to the residence of the complainants parents at 6:10 a.m. on February
    22, lasting for over 20 minutes.

2.

The police seized a purse and clothing belonging to the
    complainant from the appellants vehicle when he was arrested on February 23.

3.

The complainants mother recognized the appellants voice during
    the telephone call.

4.

In response to the question inquiring as to their location, the
    complainants mother heard the appellant say that he had taken the complainant
    out to see the stars. This was suspicious given it was 6:10 a.m. and considering
    he had told her he was too busy to drive her home.

5.

The complainant told her mother that the appellant was touching
    her and that she was scared.  The trial judge found that the mothers evidence
    was capable of confirming the complainants allegation that the appellant
    sexually assaulted her.

[45]

According
    to the appellant, none of these factors corroborate the complainants testimony.
    He argues that for evidence to be corroborative, it must be independent from
    the impugned witness and it must be material, citing
R. v. B.(G.)
,
    [1990] 2 S.C.R. 57, at p. 78 and
R. v. Khela
, 2009 SCC 4, 1 S.C.R.
    104, at para. 39. The appellant argues that the first four factors are not
    material or probative of guilt. The fifth factor is inadmissible hearsay
    evidence and lacks independence. The verdict is therefore unreasonable because
    it is based on evidence that the trial judge found was insufficient to prove
    guilt, combined with both evidence that is not logically probative of guilt and
    inadmissible hearsay evidence.

[46]

The
    respondent accepts that the trial judge correctly concluded that it would be
    dangerous to convict on the basis of the complainants testimony standing
    alone, given the evidence of her drug use, her memory issues, and her motive to
    assist police. The respondent concedes that if there is no confirmatory
    evidence, the verdict was unreasonable. He submits, however, that the
    complainants evidence received ample support from admissible confirmatory
    evidence and thus the verdict is reasonable. According to the respondent,
    confirmatory evidence need not implicate an accused person in the offence.
    Rather, the critical question is whether the supporting evidence strengthens
    the belief that the suspect witness is telling the truth.

[47]

The
    first four factors considered by the trial judge were independent of the
    complainant and assisted in confirming her description of events.  The
    statement to her mother that the appellant was touching her was correctly used
    to support the inference that the complainants account was honest and not
    fabricated.  The trial judge properly found that the complainants testimony
    was confirmed by other evidence and, accordingly, the verdict is not
    unreasonable.

(b) Analysis

[48]

Pursuant
    to s. 686(1)(a)(i) of the
Code
, a court of appeal may allow the appeal
    where it is of the opinion that the verdict should be set aside on the ground
    that it is unreasonable or cannot be supported by the evidence. This subsection
    serves to protect against wrongful convictions; it is not a proxy for an
    appellate trial on the merits.

[49]

The
    test is whether the verdict is one that a properly instructed jury acting
    judicially, could reasonably have rendered:
R. v. Yebes
, [1987] 2
    S.C.R. 168, at p. 185 and
R. v. Biniaris
, 2000 SCC 15, at para. 36.

[50]

As
    noted by Rosenberg J.A. in
R. v. T.C
. (2004), 72 O.R. (3d) 623, at
    para. 34, this courts power to set aside a conviction on the basis that the
    trial judges assessment of credibility was unreasonable is limited. He went on
    to quote from McLachlin J. (as she then was) in
R. v. W. (R.)
, [1992]
    2 S.C.R. 122, at pp. 131-32:

It is thus clear that a court of appeal, in determining whether
    the trier of fact could reasonably have reached the conclusion that the accused
    is guilty beyond a reasonable doubt, must re-examine, and to some extent at
    least, reweigh and consider the effect of the evidence. The only question
    remaining is whether this rule applies to verdicts based on findings of
    credibility. In my opinion, it does. The test remains the same: could a jury or
    judge properly instructed and acting reasonably have convicted? That said, in
    applying the test the Court of Appeal should show great deference to findings
    of credibility made at trial. This Court has repeatedly affirmed the importance
    of taking into account the special position of the trier of fact on matters of
    credibility . The trial judge has the advantage, denied to the appellate
    court, of seeing and hearing the evidence of witnesses. However, as a matter of
    law it remains open to an appellate court to overturn a verdict based on
    findings of credibility where, after considering all the evidence and having
    due regard to the advantages afforded to the trial judge, it concludes that the
    verdict is unreasonable.

[51]

In
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 7, Sopinka J. stated that a
    verdict based on a credibility assessment is unreasonable if the trial courts
    assessments of credibility cannot be supported on
any
reasonable view of the evidence (emphasis added). This statement of the law
    was reiterated by Cromwell J. in
R. v. W. H
., 2013 SCC 22, at para. 34.

[52]

Applying
    these principles to this case, I am unable to conclude that the verdict was
    unreasonable.

[53]

As
    mentioned, the respondent conceded that if there were no confirmatory evidence,
    the verdict was unreasonable. That said, the confirmatory evidence need not
    independently establish the actual offence:
Khela
, at paras. 41-43. It
    is sufficient if it serves to restore the trier of facts faith in the
    complainants recollection and perception of events.

[54]

While
    the hearsay evidence could not be relied upon for the truth of its contents,
    the complainants contemporaneous complaint to her mother and the first four
    factors enumerated by the trial judge could serve such a restorative purpose. The
    mothers evidence of the appellants evasive response to the complainants
    inquiry of their whereabouts coupled with his strange statement that he was
    taking the complainant to see the stars but was too busy to take her home could
    also serve to establish the accuracy of the complainants perception of events.
    Lastly, the prior consistent statement rebuts the allegation of recent
    fabrication. As such, it could be concluded that it was unlikely that the
    complainant was lying so as to obtain favourable treatment from the police.

[55]

Therefore,
    the verdict is one that a properly instructed jury, acting judicially, could reasonably
    have rendered.

[56]

Accordingly,
    I would not give effect to this ground of appeal.

E.        DISPOSITION

[57]

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

Released: September 26, 2013 JCM

S.E.
    Pepall J.A.

I
    agree J.C. MacPherson J.A.

I
    agree H.S. LaForme J.A.


