



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Murray,









2020 BCCA 42




Date: 20200204

Docket: CA45205

Between:

Regina



Respondent

And

David Alan Murray



Appellant

Restriction
on publication:  A publication ban has been mandatorily imposed under
s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify the
complainant in this matter. This publication ban applies indefinitely unless
otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information and Registration Act
[
SOIRA
],
no person shall disclose any information that is collected pursuant to an order
under
SOIRA
or the fact that information relating to a person is
collected under
SOIRA
.




Before:



The Honourable Madam Justice Garson

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Abrioux




On appeal from:  An
order of the Provincial Court of British Columbia, dated
October 25, 2017 (conviction) (
R. v. Murray
, Port Coquitlam Docket 96773‑1).




Counsel for the Appellant:



D. Ferguson





Counsel for the Respondent:



M.K. Brown





Place and Date of Hearing:



Vancouver, British Columbia

October 25, 2019





Written Submissions Received



November 15 & 21, 2019

December 2, 2019





Place and Date of Judgment:



Vancouver, British Columbia

February 4, 2020









Written Reasons by:





The Honourable Mr. Justice Fitch





Concurred in by:





The Honourable Madam Justice Garson

The Honourable Mr. Justice Abrioux








Summary:

Appeal from conviction for
sexually assaulting a 14‑year‑old female employee in
1992. Held: Appeal dismissed. The judge did not err in her approach
to the assessment of the appellants credibility, nor did she misapprehend the
evidence. Her reasons were sufficient to permit meaningful appellate review.
The judge did not subject the appellants evidence to a higher level of
scrutiny than that which was applied to the evidence of the complainant. The
judge did not discredit the appellants testimony because he relied on
disclosure made by the Crown. Finally, the Crown did not elicit the details of
the complainants prior statements to third parties about the offence.
Consequently, there is no risk that the judge erred by relying on the supposed
consistency with which the complainant related her account over time as a
circumstance bolstering her credibility.

Reasons for Judgment
of the Honourable Mr. Justice Fitch:

I.   Introduction

[1]

The appellant was convicted by a Provincial Court judge of
sexually assaulting a 14‑year‑old female employee on one occasion
in the office of his business premises. The offence likely occurred in the
fall of 1992. It was not reported to the police until 2015.

[2]

The complainant testified that the appellant told her he was taking a
sports injury massage course. He asked her to come one morning before
the store opened so he could practice massaging her knee. She agreed to do so
and complied with his request to wear loose clothing that day. She said
that he began massaging her knee but proceeded to put his hands under her
shorts and underwear and digitally penetrated her vagina. He asked her to turn over
onto her stomach and continued to touch her vagina and massage her buttocks.
She said that his body was moving into her in a thrusting kind of way.

[3]

The appellant testified and denied ever massaging or sexually touching
the complainant.

[4]

The complainant said she blamed herself for permitting the appellant to
act flirtatiously with her in the days leading up to the offence. While she
told her boyfriend and some friends what had happened at the time, she did not
tell her parents until years later.

[5]

There was no independent evidence confirming the complainants testimony.
The case turned on the trial judges application of
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, to the evidence before her. She rejected
the appellants evidence. She concluded that his evidence did not raise a
reasonable doubt. She accepted the evidence of the complainant and
concluded that the Crown had proven beyond a reasonable doubt that the appellant sexually assaulted
her as alleged.

[6]

Against this background, the appellant argues that the judge erred by:

1.       Improperly devaluing his
evidence on the basis of peripheral matters and shifting the burden of proof
by requiring him to adduce corroborative evidence and comply with the rule
in
Browne v. Dunn
(1893), 6 R. 67 (H.L.),
in relation to such matters;

2.       Misapprehending material evidence
that played an essential role in the reasoning process leading to the
conviction;

3.       Subjecting his evidence to
a higher level of scrutiny than that which was applied to the evidence of
the complainant;

4.       Failing to give reasons
sufficient to permit meaningful appellate review;

5.       Discrediting the
appellants testimony because he had referred to and relied on aspects of
the Crown disclosure in giving his evidence; and

6.       Relying
on prior consistent statements made by the complainant about the
offence to bolster her credibility.

[7]

The fifth ground of appeal was raised by the appellants counsel
for the first time in oral argument. The sixth ground of appeal arose
out of a question asked by the Court as to the use the judge made of the
complainants statements to her boyfriend about the circumstances of the
offence. The parties were permitted to file supplementary written submissions
addressing these two additional issues.

II.  Overview of the Evidence
and the Positions of Counsel at Trial

1.  The Case for the Crown

[8]

The complainant testified that she quit school shortly after she
started Grade 8 in the fall of 1991. She was 13 years of age.
She said that she was dealing with personal issues at the time and started
abusing alcohol, marihuana and her step‑fathers wake‑up pills.
She acknowledged that her drug abuse and partying habits were factors that
contributed to her withdrawal from school in Grade 8.

[9]

The complainant testified that the offence occurred in the warmer months
of 1992, but was unable to say whether it happened in the late spring,
summer or early fall. She turned 14 years of age in the summer of 1992.
She returned to school in September 1992.

[10]

The complainant and her friends began hanging out in the
appellants sports memorabilia store to socialize and play video games.
She soon began working in the store as a part‑time casual employee.
It was her first job. The complainants family took a photograph of
the complainant before she left for her first day of work. The
complainant wore a skirt and jacket and curled her hair because
she considered her first day of work to be a special day. As the
trial judge put it, for her this was a big deal. The complainants mother
testified that the complainant was happy and excited to have a part‑time job.

[11]

The complainants mother and her step‑father went to the
appellants store and had a brief discussion with him in order to
satisfy themselves that the work environment was a suitable one for a
young woman.

[12]

The complainant testified that she liked being around the appellant
because he treated her well and said nice things to her. She knew that he liked
her and was flirting with her but she did not want the attention to stop. She
was unwilling at the time to acknowledge that the attention he was giving her
was inappropriate. She believed that he touched her long blond hair.
He also bought her clothing she could not afford, including an
expensive pair of jeans. In addition, she testified that the
appellant took her out for a few dinners, including at a revolving restaurant
located atop the Sears Tower in downtown Vancouver,
British Columbia. She dressed up in clothing he had purchased for her
for this dinner. She said the appellant made her feel special and important and
that she was flattered by the attention he gave her.

[13]

The complainant testified that she worked for the appellant for a few weeks.
Her mother similarly testified that the complainant worked at the store for at least
a week or two.

[14]

The complainant recalled working at one sports memorabilia auction
hosted by the appellant inside a strip mall. She said that the appellant
bought her a red skirt, blazer and a pair of high heels to wear at the
auction.

[15]

The complainants mother knew the appellant bought clothing for her
daughter in advance of the auction. She remembered it being a red dress. She
did not understand why her daughter needed a dress for the auction.

[16]

In cross‑examination, the complainant testified
that the offence did not occur at an auction.

[17]

When the offence occurred, the complainant testified that she felt
it was her fault because she knew the attention she was receiving from the
appellant was inappropriate, but allowed it to continue.

[18]

She testified that she never went back to work at the store after the
day the offence was committed.

[19]

The complainants mother asked the complainant why she stopped
working at the store. The complainant simply told her mother she did
not want to work there anymore.

[20]

The complainant was asked in examination‑in‑chief whether
she told anyone what happened to her. She said that she told her boyfriend, J.K.,
and some other friends. The Crown asked, Did you give them the details of what
youve told the court today? The complainant responded, I dont recall what
details I gave them but I told them that he had touched me. She testified that
she told her mother what had happened years later before she reported the
incident to the police.

[21]

Around 2014, the complainant became aware that the appellant had
been elected to municipal council. He was running for office again
and she noticed his campaign signs all over the city. She said that he
started going to her gym, so she quit.

[22]

In 2015, the complainant attended a public forum. The mayor of
the city and the appellant were in attendance. She spoke at the forum to oppose
the approval of a quarry. She did not speak to the appellant.

[23]

After the public forum, the complainant decided to report to the
police what had happened to her. In addressing her motivation for doing so, the
complainant said she was upset and angry about running into the appellant and
being reminded of what he did to her. She also testified that she was unnecessarily
carrying around a secret to be ashamed of.

[24]

The complainant was not cross‑examined on the offence itself, nor
did defence counsel seek to impeach her credibility by cross‑examining
her on the statement she gave to the police.

[25]

In cross‑examination, the complainant denied asking the
appellant for work again in 1993.

[26]

In re‑examination, the complainant testified that she only
worked for the appellant for one brief period of time and never
saw him again after the offence  except on those occasions in 2014 and 2015
that preceded the police report.

[27]

J.K. testified that he thought he began dating the complainant
after she quit working for the appellant. He testified that she told him why
she left her job and the information upset him. J.K. did not do anything
with that information. He also vaguely recalled the complainant saying
something about the appellant purchasing a dress for her.

[28]

J.K. testified that he never went to the appellants store and
never met the appellant.

2.  The Appellants Evidence

[29]

The appellant testified that he put video games in his store
in early September 1992 to boost revenues.

[30]

The appellant testified that the complainant was part of a group of
adolescents who came into the store every day to socialize and play video games.

[31]

He testified that he first met the complainant on September 8, 1992.
He asked the complainant and another girl if they would be interested in
helping him out with a sports collectibles auction he was planning
for September 26, 1992. They agreed to do so. He testified that he
trained the two young women on how to run the cash register on their
first day of work, which was Thursday, September 24, 1992. As the auction was
kind of a formal event, he took both girls to the Coquitlam Centre on
Friday, September 25, 1992, and bought them dresses.

[32]

The appellant asked the complainant and the other girl he employed to
assist with the auction to meet him at the store at 10:00 a.m. on
September 26, 1992, to help with the setup for the auction that was taking
place later that day. The store was open from 11:00 a.m. until 5:00 p.m.
The auction took place that day between 5:00 p.m. and 9:00 p.m. in
a public area of the plaza in which the appellants business was located.

[33]

The appellant testified that the complainant and the other young woman
only worked for him for three days commencing on September 24, 1992.

[34]

The appellant said he saw nothing in the complainants behaviour
that would lead him to believe she was abusing drugs when he hired her.

[35]

On Monday, September 28, 1992, the appellant
testified that two older boys, one of whom he understood to be the
complainants boyfriend, attended at his store and confronted him about
buying the complainant a dress.

[36]

On October 1, 1992, the appellant testified that his
store was robbed at gunpoint. He said the offence led to a high‑speed chase
and that one of the robbers was killed. He testified that the incident garnered
a great deal of media attention.

[37]

The appellant said the traumatic events of October 1, 1992, assisted
him in establishing the dates upon which he hired the complainant and held the
auction.

[38]

The appellant testified that the complainant came to the store on
October 2, 1992, to ask how he was doing. It was not put to the
complainant in cross‑examination that she attended the appellants store
to inquire about his welfare shortly after the robbery was committed.

[39]

On the appellants evidence, the opportunity he had to commit the
offence was confined to the three days commencing on September 24, 1992.

[40]

The appellant testified that about six months later, the
complainant came into the store and asked him for a job. This was put to the
complainant in cross‑examination and she denied it. The appellant said
the complainant told him she had experienced some difficulties and needed a
job. He testified that the complainant confided in him about a lot of personal
issues in her life. The appellant did not offer her a job.

[41]

The appellant also testified that the following day, the complainants
step‑father came into his store and the two men had some sort of
discussion. It was never put to the complainants step‑father in
cross‑examination that he attended the appellants store on a second occasion
about six months after the alleged offence.

[42]

The appellant said it was not the case that the complainant worked two
or three weeks for him. He denied asking her to come into the store early
one day to practice giving massages. He denied taking the
complainant to dinner at the Sears Tower. He denied sexually touching the
complainant.

[43]

The appellant was cross‑examined on a statement he gave to the
police on August 22, 2015. He agreed describing the complainant as
being tall and very attractive with long blond hair.

[44]

The appellant remembered buying the complainant an outfit before the
auction, but said he did not remember the colour of the outfit nor did he
remember whether he bought her a pair of high heels. He noted that the
complainants mother, in her statement, also said she only remembered the
dress and made no mention of shoes.

[45]

The appellant was cross‑examined on why he told the police he did not
know the complainant that well when he employed her for a short time,
recognized her when she introduced herself before speaking at the public forum
in 2015 and, by his own admission, was a person who confided in him about
her personal struggles. The appellant testified that he could barely
remember what her name was. Despite this, he testified in cross‑examination
that he knew she worked at a nail salon in the community in which they
lived and that they would wave to one another when he had lunch outside in a
community square. He also testified that he knew his daughter had cut the
complainants hair on two occasions.

[46]

The appellant was asked in his interview with the police whether he
shopped with the complainant for a dress. The appellant replied, You know what?
Im not a hundred percent sure but I think I did. In his examination‑in‑chief,
the appellant testified that he took the complainant and the other young woman
he hired to the Coquitlam Centre to buy dresses for both of them. The
appellant explained that he knew he drove the two young women to a mall
to buy dresses, but was only ninety percent sure that it was the
Coquitlam Centre. He denied attempting to distance himself from the
complainant when being questioned by the police.

[47]

The appellant also acknowledged that he never told the police the
complainant dropped by his store to inquire about his welfare the day after
the robbery.

[48]

It was never put to the complainant in cross‑examination
that she would exchange waves with the appellant when they saw one another out
in the community. Further, the appellant never mentioned this in his statement
to the police.

[49]

The appellant acknowledged in cross‑examination that he knew the
complainant operated a business in the community and testified that [s]he was
all over the internet with it. He insisted, however, that he did not know
the exact spelling of her last name.

[50]

The appellant testified that he warned his adult daughter about
being around the complainant because of things the complainant disclosed to him
22 years earlier when she was 14 years old. Despite this,
the appellant testified that after the public forum in which the complainant spoke,
he considered reaching out to the complainant to see if he could assist
her in marketing her business through an online newspaper he edited. He
offered no comprehensible explanation about why he would reach out to
the complainant to help her with her business in circumstances where he was
terrified about the complainant having any involvement with his daughter.

3.  The Closing Submissions
of Counsel

[51]

The theory of the defence was that the complainant was not a credible
witness. She was using drugs at the time of the alleged offence.
Additionally, the defence argued that the appellants timeline is such
that the opportunity to commit the offence could only have presented itself on
Saturday morning, the day of the auction. For reasons I have difficulty understanding,
the appellants trial counsel (not counsel on appeal) argued that the
offence could not reasonably have occurred the morning of the
auction.

[52]

In her closing submissions, Crown counsel acknowledged that
one of the challenges in historical sexual assault trials is
that memories fade over time. Nevertheless, the Crown argued
that the evidence established the appellant groomed the complainant to
facilitate commission of the offence. The Crown submitted
that the appellants credibility was negatively affected by the evasiveness he
demonstrated while giving evidence and providing his statement to the police,
his unconvincing efforts to distance himself from the complainant in
circumstances where he clearly knew who she was, and his failure to tell the
police either that the complainant initiated contact with him after the robbery
or that they would exchange waves years later when they saw one another in the
community. The Crown noted the appellant never put to the complainant in cross‑examination
that she exchanged friendly waves with the appellant on the street. The Crown
submitted that the appellants version of events was unbelievable. By contrast,
the complainant was said to have given a consistent and candid account which
was not shaken in cross‑examination.

III. Reasons for Judgment

[53]

In oral reasons for judgment, the judge began by framing
the issue that arose in this case and the analysis she was required to follow:

[2]        At issue with respect to this allegation of sexual
assault is simply whether or not the Crown has proven beyond a reasonable doubt
that a sexual assault occurred. The defence denies the allegation and
ultimately the decision that I must make is one based on findings of
credibility and what has indeed been proven. As I have indicated, the Crown
must prove the case beyond a reasonable doubt and because the accused has
testified, I need to also go through an analysis that is referred to typically
as a
W.(D.)
analysis
to determine whether or not he has raised a doubt. This is not one of those
cases where there is an issue with regard to consent. The issue is simply it did
not happen from the accuseds perspective.

[3]        According to
W.(D.)
,
the analysis that I must
undertake is to first consider the evidence given by the accused because he has
testified. I have to determine whether I believe it. If I do accept what he has
said then he is acquitted, he is found not guilty. If I do not necessarily
believe it but I find that it might reasonably be true, then that is also
defined as a doubt and I must then also find him not guilty. It is only if I do
not believe his evidence and I do not find that it raises a doubt, that I must
then consider the evidence provided by the Crown and in particular, the
evidence provided by the complainant in this matter. I must still go through
all of the elements of the offence to be satisfied that the Crown has indeed
proven the case beyond a reasonable doubt. That is the analysis that I will be
following in this decision.

[54]

The appellant takes no issue with this self‑direction. While the
might reasonably be true test is best left to cases involving the
doctrine of recent possession, or similar presumptions, it is not
reversible error for a trial judge to make use of it in deciding
whether evidence that he or she is not prepared to accept nonetheless raises a reasonable doubt:
R. v. K. (V.)
(1991),
68 C.C.C. (3d) 18 at 3134 (B.C.C.A.);
R. v. Dubas
(1995),
60 B.C.A.C. 202 at paras. 1112;
R. v. Reddy
,
2010 BCCA 11 at para. 40;
R. v. Mann
, 2010 BCCA 569
at para. 30.

[55]

The judge recognized that the passage of time between the alleged offence
and when it was reported to the police gave rise to a barrier to precise
memory on the part of
all
the witnesses (emphasis added).
Later in her reasons, the judge noted that 
everybodys evidence
is
marked by the passage of time (emphasis added).

[56]

With reference to the appellants testimony that he would exchange
waves with the complainant in the community long after the offence, the judge
noted that none of that was put to [the complainant] in cross‑examination,
and that [i]t sounds unlikely, to put it mildly.

[57]

The judge said the appellants evidence that he wanted to help the
complainant to market her business seemed to be somewhat inconsistent
given his abiding worry about the complainant having any sort of contact with
his daughter.

[58]

The judge referred to the cross‑examination of the appellant on
his statement to the police that he did not know the complainant very well and
juxtaposed that with the appellants evidence that she confided in him and
that he continued to have some contact with her after the alleged offence.

[59]

The judge also noted that the appellant was vague and waffled somewhat
about where they went shopping for the dress.

[60]

After reviewing the evidence and the positions of counsel in relation to
it, the judge said this:

[71]      In reviewing the evidence then with the analysis as
I have already described in
R. v. W.(D.),
I do need to review the evidence of Mr. Murray first.

[72]      I am struck by the inconsistencies. One of the
things in assessing and evaluating evidence is what are called internal
consistencies and external consistencies. By that I mean are the things that he
said consistent throughout? Are they inconsistent in contrast with other
evidence? One also applies a certain degree of common sense to evidence in
terms of what is stated. Certain observations that I made of his evidence
include that for each time that the evidence -- or he -- was
directed both in direct examination and cross‑examination he was directed
to particular areas of questioning, he would take the evidence and his
testimony where he wanted to go. He would not answer the questions. I did,
several times, admonish him to simply answer the questions that were being
asked and he made it very clear he had other things he wanted to talk about.
That included the robbery. But within the context of his evidence, it appeared
that he was making a fairly determined effort to deflect the questioning away
from where the questioners were trying to take him.

[73]      In terms of looking at some of the content of the
evidence, everything that relates to his daughter, frankly, makes no sense. It
was not suggested to [the complainant] that she had been exchanging waves
across Leigh Square with Mr. Murray and in the context of the evidence
given by [the complainant] that she was separating herself and her mind and her
thoughts from these incidents back from 1992 and that she had not seen Mr. Murray,
to think that she is casually waving to him across a courtyard in Port Coquitlam
is, frankly, absurd. I do not accept that.

[74]      But it then gets into this whole issue, at least in
Mr. Murrays mind, about his daughter and trying to keep his daughter away
from [the complainant]. I heard nothing that would explain how he would know -- if
it is true anyway -- that his daughter ever came across her but, for
whatever reason, that seemed to set up a very substantial, negative reaction
from him and a determination to ensure that there was a separation there. It is
not for me to speculate why that is the case. It may be that there is something
going on, I do not know what, that could have reasonably accounted for that.
Another explanation might be that he did not want his daughter hearing anything
from [the complainant] about him. He suggests that [the complainant]
said things to him in the past that he did not want his daughter to be a part
of but it could equally flow the other way.

[75]      Crown counsel, in her submissions described
that the way that [the complainant] described her response to Mr. Murray
and Mr. Murrays activities, that that was grooming behaviour. I agree
that those are behaviours that are completely consistent with grooming
behaviours and those are behaviours that, sadly, can and do lead to unwanted
sexual activity.



[77]      In terms of evaluating the evidence as a whole, I
am left without any doubt in this matter. I do not believe the evidence of Mr. Murray.
It does not raise a doubt and I am rejecting his evidence.
I do find that
the evidence provided by the Crown does prove beyond a reasonable doubt that
there was a sexual assault one morning at this business in Port Coquitlam
sometime in 1992.
Stand up, sir.

[78]      With those findings, sir, I am finding you guilty
of Count 1. [Count 2, a charge of sexual interference, was stayed by
the Crown at the outset of the trial as the Crown conceded it could not prove
the complainant was under the age of 14 when the alleged offence was
committed.]

[Emphasis added.]

[61]

At this point, the trial judge took a brief adjournment. When
the proceedings resumed, the judge said she wanted to add another paragraph
to her reasons because she was thinking I probably shouldve said a few more
things. She then delivered the following additional reasons explaining
why she accepted the complainants evidence:

[79]      When I commented that I accept the evidence as
provided by the Crown witnesses, I should have specifically addressed the
evidence of [the complainant] in terms of why I accept her evidence.

[80]      In terms of her evidence as a whole, there were
unquestionably some areas about which she is uncertain, for example, dates. lt
is clear those are amongst the issues that we have had all the way along,
addressing dates and times. The evidence, however, was consistent within
itself. Her behaviour and her comments about steps she took afterwards and
ultimately how this matter even came to the attention of the police are all
consistent with her description of what occurred at that time.

[81]      She described herself as a young woman, a teenager,
who was excited about this job. She went there and worked hard. She enjoyed the
attention she was getting and was prepared to keep working there and then she
quit very suddenly. That is corroborated by the evidence of, in part, [J.K.],
also certainly her mother, to the point that they were surprised because they
all knew, as is evidenced by this photograph, how much she was looking forward
to this. It was a job she was apparently pretty good at, being as bright as she
is and as capable as she was, but she did not hold back in describing how she
had felt about it. It is clear she did not consent to this assault occurring.
That was evidenced as well by her leaving the job at the end of the day.

[82]      She was a young woman who had just been coming
through a difficult time, having been out of school for a period of the larger
part of a school year and was trying to find her own way in the world. Those
steps also are consistent with something having gone very wrong.

[83]      Her carrying on her
life and her reasons for ultimately reporting these events are also consistent
with the way she approached incidents that had occurred to her in the past. She
was not being histrionic or prone to exaggerate about anything in her evidence.
She was measured in what she said and she admitted that there were things she
was not clear of but what she was clear of is what happened to her on that day
and as I have said, I accept her evidence in that regard.

IV. Analysis of the Grounds of Appeal

1.  Relying on Peripheral
Matters to Assess the Appellants Credibility

[62]

The appellant submits that in assessing his credibility, the judge
inappropriately emphasized inconsistencies in relation to peripheral
evidentiary matters. To compound the problem, the appellant asserts that the
judge required him to: (1) corroborate non‑material facts
with independent evidence; and (2) comply with the rule in
Browne v. Dunn
in relation to non‑material issues.

[63]

The appellant considered it to be important to establish, by reference
to the date of the robbery, the date upon which the auction occurred.
His position at trial was that Saturday, September 26, 1992,
was the only morning upon which he could have had an opportunity to commit the
offence. For reasons I do not fully appreciate, he argued that
it was unreasonable to suppose that he could have committed the offence on the
morning of the auction. It was the appellant who made this
timeline a key component of his defence.

[64]

In addressing the appellants evidence that the robbery occurred on
October 1, 1992, the trial judge simply observed that there was
no confirmatory evidence establishing that this well‑publicized robbery
occurred that day, and that she considered the appellants evidence
respecting the precise dates and times he provided as part of his timeline
to be subject to the same frailties as the evidence given by the other witnesses.
She also observed that the complainant was not asked about the
robbery or the temporal relationship between the date of the robbery and
the date of the alleged offence.

[65]

In my view, what the judge said about this matter falls well short of shifting
the burden of proof by requiring the appellant to corroborate his timeline of
events. Nothing in the reasons for judgment suggests to me that the
judge discounted the appellants evidence on any material matter due to his
failure to lead independent evidence confirming the date of the robbery.

[66]

Further, I do not agree with the appellant that the judge erred in
principle by relying on peripheral matters to assess his credibility.
It was open to the judge to consider internal inconsistencies in the appellants evidence
and inconsistencies between his trial evidence and the statement he gave
to the police in assessing his credibility. While I would hesitate to
characterize all of the inconsistencies relied on by the Crown and noted by the
trial judge as being material to a fair assessment of the appellants credibility,
most clearly were.

[67]

For example, the appellants evidence that the complainant came to
the store to inquire about his well‑being the day after the robbery was
obviously designed to undermine the credibility of her claim of sexual abuse.
Similarly, the appellants evidence that they would wave to one another years
after the alleged offence was calculated to undermine the complainants testimony
that he had sexually violated her in the past. These were not peripheral matters.

[68]

The fact that the appellant said nothing about either of these supposed events
in his statement to the police, and nothing about the friendly exchange of
waves until he was under cross‑examination, could properly be considered
by the trial judge as matters negatively impacting her assessment of his
credibility. In addition, the appellants claim in his statement to the
police that he did not know the complainant very well could
reasonably be regarded as being internally inconsistent with his
testimony. His evidence that he was prepared to reach out to the complainant
and offer his assistance in marketing her business in circumstances where he
warned his daughter to have no contact with her is perplexing. In my view, it was
open to the trial judge to conclude that his evidence on this point makes
no sense. I say the same about the appellants evidence that he warned his
daughter to stay away from the complainant based on things she said to him
more than two decades ago when she was 14 years of age.

[69]

Neither the Crown nor the judge expressly invoked the rule in
Browne v.
Dunn
. In rejecting the appellants evidence that he exchanged friendly
waves with the complainant years after the alleged offence, the
judge, on two occasions, noted that the complainant had not been cross‑examined
on this point. Against this background, I consider it to be appropriate to
proceed on the footing that the judge at least implicitly relied on
Browne v. Dunn
as one reason to reject the appellants evidence on this issue.

[70]

The principle of confrontation is fundamentally a question of trial fairness.
Enforcing it in appropriate circumstances promotes fairness to the witness
and enhances the truth‑seeking function of the trial:
R. v. Podolski
,
2018 BCCA 96 at para. 174. The principle is only triggered when
the potential contradiction relates to a matter of substance:
R. v. Drydgen
,
2013 BCCA 253 at paras. 14, 26;
R. v. Quansah
,
2015 ONCA 237 at para. 81;
R. v. Willis
,
2019 NSCA 64 at para. 27. Whether the rule in
Browne v. Dunn
applies
is a question of law:
Drydgen
at para. 22.

[71]

Assuming that the judge applied the rule in
Browne v. Dunn
to her assessment of the credibility of the appellants evidence that he
exchanged friendly waves with the complainant in the years following the
alleged offence, I am of the view that she did not err in law in doing so.

[72]

Whether the complainant maintained friendly relations with the
appellant after the offence was alleged to have been committed was a matter of
substance. By giving evidence that the complainant maintained friendly
relations with him, the appellant sought to undermine the credibility of the
complainants account.

[73]

The complainant made it clear in her evidence that she had no contact
with the appellant between the day of the offence and 2014 or 2015.
She was not challenged on this version of events. Her evidence on this point
was then contradicted by evidence given by the appellant. By conducting his
defence in this way, the appellant ran the risk that his failure to cross‑examine
the complainant on these matters could have a negative impact on the
judges assessment of the credibility of his evidence on this issue:
R. v. Paris
(2000),
150 C.C.C. (3d) 162 at para. 23 (Ont. C.A.).
That is what occurred here. In my view, the appellant has no cause for
complaint.

[74]

I also wish to emphasize that failure to observe the confrontation principle
was not the only basis upon which the appellants evidence on this issue
was subject to attack. As noted earlier, the appellant said nothing in his
police statement about the friendly waves he said he exchanged with
the complainant and, remarkably, nothing about this in his examination‑in‑chief.
I take the judges remark that she was struck by the inconsistencies in
the appellants evidence, including internal inconsistencies, to be inclusive
of his failure to make any mention of the exchange of waves until he was under cross‑examination.

[75]

In addition, the judges assessment of the appellants credibility
turned on her evaluation of the way in which he gave evidence and the extent to
which he was evasive in his response to questions. These are findings
rooted in the advantaged position of the trial judge. They are entitled to
substantial deference on appellate review.

[76]

Finally, the appellant submits that the judges rejection of the
appellants evidence about the waves he says he exchanged with the complainant
demonstrates that she had already accepted [the complainant] was truthful
about not wanting to see Mr. Murray in the community. If the appellant is
suggesting that this remark is evidence the judge abandoned the
W.(D.)
framework
in her reasons, I do not agree. The judge made clear throughout that
her analysis would follow the
W.(D.)
formula. Further, reasons for
judgment must be read as a whole. The sequence in which a judge addresses the
evidence and makes findings of fact and credibility, particularly
when oral reasons for judgment are being delivered, is not necessarily
determinative of the analysis employed in reaching a verdict.

[77]

In short, I see no reversible error in any of this and would not give
effect to this ground of appeal.

2.  Misapprehension of the Evidence

[78]

The appellant asserts that the reasons for judgment disclose a material
misapprehension of the evidence by the judge. Specifically, the appellant
argues that the judges remarks at paras. 8283 of her reasons for
judgment (reproduced herein at paragraph 61) demonstrate
that she misunderstood the evidence about when the complainant left and
returned to school.

[79]

As will be recalled, the complainant dropped out of school in the fall
of 1991  before the offence is alleged to have been committed  and
returned to her studies in 1992. The appellant submits that the judge
misunderstood this timeline of events and wrongly considered the difficulties
the complainant was having in 1991 as circumstantial evidence
consistent with a sexual assault having occurred in 1992.

[80]

I am not persuaded that the judge misapprehended the evidence on this
issue. In summarizing the complainants evidence, the judge correctly
noted that the complainant left school shortly after starting Grade 8 in 1991
and did not return to school until September 1992. The judge was
clearly not suggesting that the complainants difficulties at the
beginning of Grade 8 were somehow relevant to an alleged assault that had
not yet occurred. Read in context, what the judge meant in the impugned paragraphs is
this: that the complainant suddenly and without explanation quit a job she
was very excited to have is consistent with something having gone very wrong.
The appellant does not take issue with the trial judges
inferential reasoning. Rather, he suggests that it flows from a
fundamental misapprehension of the evidence. As I have rejected the appellants position
on this point, I would not give effect to this ground of appeal.

3.  Applying Different Levels
of Scrutiny to the Evidence of the Complainant and the Appellant

[81]

The appellant advances two related arguments in support of
this ground of appeal. First, he submits that the granular level at which
the judge scrutinized his evidence is not reflected in her approach to the
complainants evidence. Second, he argues that the different approaches the
judge took to the assessment of his credibility and the credibility of the
complainant manifests itself in her decision to supplement her reasons with an
additional explanation about why she accepted the complainants evidence. The
appellant characterizes these further brief reasons as an afterthought delivered
after the finding of guilt had already been made.

[82]

It is an error of law for a trial judge to use a higher degree
of scrutiny in assessing the credibility of defence evidence than Crown evidence.
But this is a notoriously difficult ground of appeal to successfully
advance. It is difficult because credibility findings are the province of the
trial judge and attract a very high degree of deference on appeal. In
addition, appellate courts tend to view this argument with scepticism, as
it may constitute a thinly‑veiled invitation to reassess on appeal
credibility determinations made at trial. Where the imbalance is significant
enough, the deference normally owed to the trial judges credibility assessment
is generally displaced:
R. v. Kiss
, 2018 ONCA 184
at paras. 8283;
R. v. Chanmany
, 2016 ONCA 576
at para. 26.

[83]

I am not persuaded that the alleged error has been made out in this
case. The judge emphasized that the passage of time had an understandable
impact on the memories of
all
of the witnesses. While it is true that,
on at least two occasions in her general review of the evidence, the judge
appeared to question the appellants veracity on the basis of what I consider
to be little more than an ill‑chosen word or infelicitous phrase,
she did not rest her credibility findings on these points.

[84]

In addition, the evidence of the complainant and appellant did not stand
on the same footing. The appellants evidence was found to be internally
inconsistent on significant points. In addition, it was found to be
inconsistent with portions of the statement he gave to the police. By contrast,
the complainants evidence betrayed no internal inconsistency. She was not
cross‑examined on the substance of the allegations and not cross‑examined
on her statement to the police. The most that could be said about the
complainants evidence is that she was uncertain about dates.

[85]

This is not a case where the judge failed to consider factual matters
that could have had a significant impact on her assessment of the complainants credibility.
Nor is it a case where the appellants evidence was rejected due to
inconsistencies on peripheral matters. When the judge turned to apply
W.(D.)
to
the evidence of the appellant, she said she was struck by the inconsistencies
in the appellants evidence and highlighted those that caused her the greatest
difficulty. She made no mention of inconsistencies relating to peripheral
matters in this critical portion of her analysis (see paras. 7275 and 77
of the reasons for judgment, reproduced herein at paragraph 60).

[86]

I do not consider this case to be factually similar to either
Kiss
or
Willis
.
Accordingly, I would not give effect to the appellants submissions on
this issue.

[87]

Further, I am unable to accept the appellants position that the judges
decision to supplement her oral reasons immediately after the brief adjournment
in the proceedings is evidence that she brought an unbalanced approach to her
assessment of credibility. Before the adjournment, the judge had thoroughly
reviewed the complainants evidence. She concluded that the complainants
evidence established beyond a reasonable doubt that the appellant
committed the offence (see para. 77 of the reasons for judgment,
reproduced herein at paragraph 60). In my view, the brief
supplementary reasons given by the judge explaining why she accepted the complainants
testimony do not support a conclusion that the verdict was rendered without
critically assessing the evidence led by the Crown.

[88]

I have also (independent of the submissions made by the appellants counsel)
considered whether a miscarriage of justice occurred in this case
because the manner in which the reasons for judgment were delivered
resulted in a trial that was unfair in appearance:
R. v. Khan
,
2001 SCC 86 at paras. 7273. I conclude that a well‑informed,
reasonable person considering the whole of the circumstances would not
perceive that the trial was unfair in appearance because the judge determined
to supplement her reasons for judgment in the way she did.

4.  Inadequate Reasons

[89]

The essence of the appellants argument on this issue is that the
judge did not explain why she accepted the evidence of the complainant. Relying
on
R. v. R.E.M.
, 2008 SCC 51, he submits that the
reasons for judgment are insufficient to permit meaningful appellate review.

[90]

I do not agree. The judge found that the complainant was not prone to
exaggeration. The complainant admitted that her ability to say when the offence
was committed was compromised by the passage of time. The judge found
her to be measured in her testimony and clear about what happened to her. As I
have already noted, the complainants version of events was not challenged in
any significant way in cross‑examination. The judge appears to have
accepted that the appellants pre‑offence conduct, as described by
the complainant, was consistent with the type of grooming behaviour that
commonly leads to unwanted sexual contact. The judge also considered
that the complainants sudden decision to quit a job she was
delighted to secure was consistent with something having gone very wrong. The
judge ultimately accepted the complainants testimony that the appellant
sexually touched her in the way she described.

[91]

Considering the reasons for judgment in the context of the
evidence as a whole and the submissions of counsel, I am of the view that they
are more than sufficient to explain the decision to the parties and permit
meaningful appellate review. I would not give effect to this ground of appeal.

5.  Using Disclosure to
Discredit the Appellants Testimony

[92]

The appellant submits that the judge erred in discrediting his evidence
because he received and acknowledged relying on Crown disclosure. The
appellant submits that the judges approach to this issue made a trap of his
constitutional right to disclosure:
R. v. Peavoy
(1997),
34 O.R. (3d) 620 at 625 (C.A.);
R. v. Schell
(2000), 148 C.C.C. (3d) 219 at paras. 5657
(Ont. C.A.);
R. v. White
(1999), 42 O.R. (3d) 760
at 767768 (C.A.).

[93]

The background relevant to this ground of appeal may be briefly stated.
In cross‑examination, the appellant testified that he did not remember
buying the complainant a pair of high‑heeled shoes to
wear at the auction. Without further inquiry by Crown counsel, the
appellant volunteered that his evidence on this point  that he, in
fact, did not buy the complainant a pair of high‑heeled shoes  was
consistent with an out‑of‑court statement given by the
complainants mother. The issue was not pursued in cross‑examination.
The Crown did not put to the appellant that he was tailoring his evidence with
the disclosure in mind, nor did the Crown suggest in its closing submissions
that the appellants credibility was negatively affected by his reliance on the
disclosure.

[94]

In her reasons for judgment, the judge noted that the appellants
testimony on whether he bought the complainant a pair of high‑heeled shoes
made clear that he was relying on documents disclosed to him by the Crown  a statement
that is factually correct. Later, in assessing the reliability of the
appellants timeline of events, the judge noted that his recollection
of dates was not confirmed by independent evidence and that the appellant was
relying on his own memory and what he has read in other peoples statements,
to a small degree.

[95]

I need not address in this case the circumstances in which the Crown may
properly cross‑examine an accused on the disclosure they reviewed before
testifying. I agree with the submission of the Crown that this case is devoid
of the prejudicial cross‑examination on disclosure that occurred in
Schell
.
I also agree with the Crown that the judge did not infer that the
appellant concocted his testimony after receiving disclosure as occurred
in
R. v. Thain
, 2009 ONCA 223 at paras. 18,
2529. In my view, the reasons cannot reasonably be read as supporting the
proposition that the judge used the fact of disclosure to discredit
the appellants testimony. I note that the judge made no reference at all to
this issue in explaining why she rejected the appellants testimony. I
would not give effect to this ground of appeal.

6.  Using the Complainants
Prior Consistent Statements to Bolster Her Credibility

[96]

As noted earlier, the complainant gave evidence about when she disclosed
to others what the appellant had done to her. She said she told J.K. and some
other friends at the time. The Crown asked, Did you give them the details
of what youve told the court today? She replied, I dont recall what
details I gave them but I told them that he had touched me. She told her
mother what happened before going to the police in 2015. J.K. said the
complainant told him why she no longer worked at the appellants store and
that the information upset him. Neither J.K. nor the complainants mother
gave any evidence as to the substance of the disclosure made to them. The only
evidence elicited from the complainant on this issue was that she told J.K.
the appellant had touched her. The judge reviewed all of this evidence.

[97]

Crown counsel did not invite the judge to conclude that
the complainants evidence was consistent with what she told others about the
circumstances of the offence. Further, the Crown did not invite the judge to
conclude that consistency in the way in which the complainant described the
offence to others over time could be relied on to bolster her credibility.

[98]

In addressing the credibility of the complainant in her supplementary reasons,
the judge noted that the complainants behaviour and her comments about
steps she took afterwards and ultimately how this matter even came to the
attention of the police are all consistent with her description of what
occurred at that time. The judge noted that the complainant quit suddenly,
leaving her job the day of the alleged offence. The judges comments
relevant to this ground of appeal are reproduced in full herein at paragraph 61.

[99]

The appellant submits that the judges remarks demonstrate that she
improperly used the complainants prior consistent statements to bolster her
credibility. I do not agree.

[100]

First, the
complainants evidence about the steps she took after the alleged assault to
bring the incident to the attention of others and, eventually, to the police,
was admissible as part of the narrative of events. The fact that a prior
complaint was made, when it was made, and why it was or was not made in a
timely fashion, are all matters that are relevant and admissible to establish
the conduct of the complainant. This evidence may assist the trier of fact
in assessing the credibility of the complainants evidence:
R. v. Dinardo
,
2008 SCC 24 at paras. 3738;
R. v. Ay
(1994),
93 C.C.C. (3d) 456 at paras. 4445, 53 (B.C.C.A.);
R. v. Hughes
, 2001 BCCA 424 at para. 46.

[101]

Second,
and apart from the fact that the complainant told J.K. the appellant touched
her, the details of her prior complaints were not adduced in evidence. Having
heard virtually nothing about the content of any of the complainants prior
disclosures, there was no real risk that the judge could engage in
the impermissible reasoning suggested by the appellant:
R. v. M.R.H
.,
2019 SCC 46 at para. 4;
R. v. L.S
., 2017 ONCA 685
at paras. 3031. This is not a case like
R. v. Stirling
,
2008 SCC 10, where there was considerable evidence about the
substance of the prior statements. In such a case, there is a genuine risk
that a trier of fact might infer credibility from consistency.

[102]

In my
view, the judge was not addressing the substance of the complainants prior
statements in the impugned paragraphs. Rather, she was addressing the
complainants comments about
the steps she took
 in other
words, her conduct  immediately after the assault as part of her credibility assessment.
She was entitled to have regard to the evidence for this limited purpose.

[103]

Finally, I
do not see that
Willis
assists the appellant on this issue. In
that case, the substance of the complainants prior statements were tendered in
evidence and improperly used by the trial judge to bolster her testimony:
Willis
at paras. 1924.

[104]

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

V.  Conclusion

[105]

In the result, I would dismiss the appeal from conviction.

The Honourable Mr. Justice Fitch

I AGREE:

The Honourable Madam Justice Garson

I AGREE:

The Honourable Mr. Justice Abrioux


