



WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.R., 2021 ONCA 572

DATE: 20210823

DOCKET: C64651

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.

Appellant

Eric Neubauer, for the appellant

Nicholas Hay, for the respondent

Heard: May 31, 2021, by videoconference

On appeal from the conviction entered by
    Justice R. Cary Boswell of the Superior Court of Justice on October 6, 2017,
    with reasons reported at 2017 ONSC 5891.

Hourigan J.A.:

A.

INtroduction

[1]

The appellant invited the complainant, who was
    his employee, to his house to discuss the complainants employment. The two had
    dinner and drinks, after which they both fell asleep. What happened next is at
    the crux of the case. According to the complainant, he awoke to the appellant fondling
    his genitals and rubbing his buttocks, and then the appellant inserted
    something into his anus. He testified that when he tried to leave, the
    appellant grabbed and stopped him. In contrast, the appellant's evidence was
    that he never touched the complainant, and when the complainant awoke, he was
    panic-stricken and incoherent. Both parties agreed that the complainant ended
    up in a bathroom. The complainant stated that while in this bathroom, he called
    his sister for assistance.

[2]

The appellant was convicted of sexual assault
    and was acquitted of unlawful confinement. He appeals his conviction,
    submitting that the trial judge erred in: (1) relying on speculative
    conclusions to make his credibility and reliability assessments; (2) failing to
    consider comments made by the complainant that suggested his account of the
    sexual assault was unreliable; (3) providing insufficient reasons; and (4) employing
    different levels of scrutiny in his assessment of the appellants and the
    complainants evidence.

[3]

As I will explain, I find these arguments to be
    unpersuasive. I am not satisfied that the trial judge relied on speculative
    reasoning to bolster his credibility and reliability assessments. The remaining
    grounds of appeal all amount to essentially the same submission: the trial
    judge should have disbelieved the complainant because he was in a state of
    cognitive impairment on the evening in issue. In my view, the trial judges
    credibility and reliability assessments were well-grounded in the evidence, and
    there is no basis for appellate interference. I would accordingly dismiss the
    appeal.

B.

facts

[4]

The complainant worked as a ramp attendant at a
    municipal airport. The appellant was a part-owner of the company where the
    complainant was employed. In August 2014, the complainant made his third
    significant error on the job, and the appellant was called into work to deal
    with the situation. According to the complainant, the appellant informed him
    that he would be dismissed. He became upset with the news, and went into the
    washroom and cried. The appellant denied that he told the complainant that he
    would be fired, but he agreed that the complainant went to the bathroom after
    speaking with him and that when the complainant returned, it was apparent he
    had been crying.

[5]

In any event, it is common ground that when the
    complainant came out of the washroom, the appellant said that they could have a
    meeting to discuss a second chance. The complainant testified that the
    appellant told him that the meeting had to remain a secret. In contrast, the
    appellant testified that the meeting was originally supposed to occur in the
    hangar and that anyone around could participate.

[6]

The appellant and the complainant ultimately met
    in the early evening at the parking lot of a Canadian Tire store. The
    complainant then followed the appellant to his house. The two ate dinner
    together and began drinking alcohol. The complainant testified that he did not
    expect or want to drink, but the appellant demanded that he take a shot during
    each commercial break. He did not believe that the appellant drank every time
    he did. On the other hand, the appellant testified that the complainant was in
    control of how much he drank and that he simply told the complainant to help
    himself to alcohol. It was the complainant, he says, who was mixing the drinks
    throughout the evening.

[7]

At some point, the complainant became very
    emotional when discussing his family. According to the complainant, the appellant
    asked him if his parents had hurt him and said his father must have hurt him
    really bad. The appellant then put his arm around the back of the
    complainants torso and pulled him over his lap. The appellants account of
    this conversation was that he simply asked the complainant why he was having
    difficulty concentrating at work. At that point, the complainant became very
    emotional, began to cry, and hugged the appellant.

[8]

Later that evening, the complainant vomited on
    himself. The appellant offered to wash his clothes. The complainant testified
    that he asked if he could go and see if he had extra clothes in his car, but
    the appellant said no and provided the complainant with his bathrobe. The pair returned
    to the couch and eventually fell asleep.

[9]

The complainant testified to waking up with his
    underwear around his knees. The appellant was standing beside him with his belt
    undone, his pants unbuttoned, and his zipper down. According to the
    complainant, the appellant was fondling his penis and rubbing his buttocks. The
    complainant said that he tried to push his back up against the couch and pull
    up his underwear, but the appellant grabbed his buttocks and penetrated his
    anus with something other than his penis. The complainants evidence was that
    he then "freaked out," pulled up his underwear, and raised his voice.
    The appellant told him to calm down and that he had a nightmare. The
    complainant ran out of the basement exit door, but the appellant grabbed him,
    pulled him back, and told him he could not go outside because it was not safe.

[10]

The appellant testified that he woke up to the
    complainant standing up and having some sort of seizure. He was unsteady,
    hyperventilating, and asking, where am I? and whats happening to me? According
    to the appellant, he helped steady the complainant and directed him outside to
    get some fresh air. The appellant denied ever touching the complainant on the
    buttocks or genitals.

[11]

The complainant testified that the appellant
    told them they were going to the spare bedroom. The complainant said that he tried
    to escape through the front doors, but was stopped by the appellant. He ran
    into a bathroom, where he said he called his sister. His sister testified to
    receiving a call at approximately 6:00 a.m. The complainant was panic-stricken;
    he did not know where he was or how to get home and asked her for help. The
    call dropped, and she called back. The complainant continued to talk as if he
    did not realize that they had been disconnected. He told her that the devil was
    taking over his body. She called 911.

[12]

The 911 operator contacted the complainant, who said
    that he had never felt like this before, that he was screwed up," and
    that the appellant was "giving him drugs." The appellant also spoke
    to the operator and provided his name, date of birth, and address. He told the
    operator that the complainant was not injured and that he had gone to bed and
    suffered a panic attack. In the background of the call, the complainant could
    be heard yelling, "I know everything I did; I know everything that
    happened" and "I don't want him to fuck me, please."

[13]

When the police arrived, the complainant was
    escorted to an ambulance. The responding officer, P.C. Ledwidge, testified that
    the complainant smelled of alcohol and was clearly under its influence, but was
    able to provide a coherent account of what happened. The officer noted that the
    appellant did not appear intoxicated. The complainant was taken to a hospital
    where he saw a sexual assault and domestic violence nurse. Blood samples and
    penile and rectal swabs were taken from the complainant. His blood alcohol
    content was 100 mg of alcohol per 100 ml of blood. A small quantity of the
    appellant's D.N.A. was found on the complainant's penis.

C.

Decision below

[14]

Credibility and reliability were the central
    issues at trial. The trial judge explained why he found the complainant
    credible and reliable and why he disbelieved much of the appellants testimony.
    He rejected the attacks on the complainant's credibility, which centred on the
    manner in which he testified and the alleged inconsistencies in his testimony.
    Regarding the appellant's evidence, the trial judge rejected critical
    components of his testimony, including who was directing the consumption of
    alcohol by the parties that evening. The trial judge ultimately concluded that
    he was satisfied, beyond a reasonable doubt, that the appellant sexually
    assaulted the complainant.

[15]

The appellant was acquitted of unlawful
    confinement. The trial judge was not satisfied that, post-sexual assault, the complainants
    perception of the events was entirely reliable. This was mainly due to the
    complainant's heightened emotional state. The trial judge also had doubts about
    whether the appellant would be physically capable of restraining the complainant.
    Additionally, he noted that the complainant was not deprived of his mobile
    phone, which he ultimately used to call for help.

D.

Analysis

(1)

Speculation in Credibility and Reliability
    Assessment

[16]

The appellant's first ground of appeal is that
    the trial judge erred by using speculative conclusions in assessing credibility
    and reliability. Specifically, he submits that the trial judge erred in: (a)
    his consideration of the D.N.A. evidence; (b) assessing the complainant's level
    of intoxication by using his blood alcohol content and neglecting his
    consumption of marijuana; and (c) his assessment of the appellants level of
    intoxication.

(a)

The D.N.A. Evidence

[17]

The first complaint is regarding the trial
    judge's use of the D.N.A. evidence. The appellant argues that the trial judge
    erred in concluding that it was "significantly more likely that [the
    appellant's] DNA found its way onto [the complainants] penis through direct
    transfer." This was speculation, he submits, because the D.N.A. expert
    called by the Crown testified that theres nothing in this case file that
    [would] indicate whether its indirect or direct transfer. According to the
    appellant, the trial judge then used his speculative conclusion to bolster the
    credibility of the complainant and the reliability of his evidence.

[18]

At trial, the primary defence position was that
    the D.N.A. had been indirectly transferred in one of the bathrooms used that
    night. The defence theory rested on the appellant's evidence that "[m]ost
    times" he spits in the toilet when he urinates. The complainant testified
    that he urinated in the downstairs washroom (but could not remember how many
    times) and that he defecated once in the upstairs washroom after the assault.
    The appellant testified that he used the downstairs washroom three to four
    times and the upstairs washroom a couple of times. The defence also suggested,
    in its cross-examination of the Crowns D.N.A. expert, that there could be indirect
    D.N.A. transfer through the handling of a remote control or as a consequence of
    the complainant wearing the appellant's bathrobe.

[19]

The Crown's D.N.A. expert testified that, due to
    the small size of the D.N.A. material, he could not opine on whether the
    presence of the appellant's D.N.A. on the complainant's penis was the result of
    an indirect or direct transfer. His evidence was that his findings were
    consistent with the "handling or fondling" of the complainant's
    penis. However, he fairly conceded that an indirect transfer by means of a
    toilet seat or through the use of the robe or remote was possible in certain
    conditions. According to the expert, four factors would have to be considered
    in assessing whether an indirect transfer was possible: dryness,
    pressure/friction, duration, and amount of source material.

[20]

The evidentiary foundation in support of this indirect
    transfer theory was weak. There was no evidence that the appellant had, in
    fact, spit on the toilet seat (as opposed to in the toilet) or any other area
    that could have come in contact with the complainant's penis. There was also no
    testimony about the sequence or the timing of the complainants and the
    appellants respective trips to the downstairs bathroom. Nor was there any
    evidence  and the complainant was never asked  about whether his penis had
    come into contact with a toilet seat. Further, neither the appellant nor the complainant
    testified about the complainant touching the remote. The complainant wore the
    appellants robe but kept his underwear on, thus reducing the chance of direct
    contact between the complainants penis and the robe.

[21]

Contrary to the assertion that the trial judge
    speculated regarding the D.N.A. evidence, he was, in fact, careful to downplay
    its significance in his analysis. His treatment of the evidence was as follows:

[120]  I should also comment on the DNA
    evidence more directly. I have used this evidence only as a piece of
    circumstantial evidence that is consistent with [the complainants] version of
    events.

[121]  I accept that it is consistent with
    other, innocent means of transfer and for that reason I have not used it as the
    "powerfully corroborative" evidence that the Crown suggested it is.

[122]  I think in the circumstances it is
    significantly more likely that [the appellants] DNA found its way onto [the
    complainants] penis through direct transfer. Indeed, I consider the suggestion
    of possible indirect transfer to be little more than speculation.

[123]  In the usual course, it is not
    necessary for the Crown to establish any given fact to the reasonable doubt
    standard. It is usually enough that I be satisfied that the evidence on offer
    is sufficiently reliable to conclude that a fact in issue is proven. But if I
    were to conclude that the DNA on [the complainants] penis was the result of
    direct transfer, the essential element of an intentional touching would be
    established on that inference alone. Whether the touching occurred is the
    central issue in the case and for that reason, it is my view that I must apply
    the reasonable doubt standard to my consideration of the means by which [the
    appellants] DNA came to be on [the complainants] penis. Given the limited
    amount of DNA and the evidence of [the Crowns expert], I am unable to say that
    the evidence meets that high standard.

[22]

Based on the foregoing, it is clear that the
    trial judge concluded that it was more likely than not that the D.N.A. was
    transferred directly and not indirectly. In other words, if he applied a
    balance of probabilities standard, he would have been satisfied that there was a
    direct transfer. This was a finding that was open to the trial judge, as he was
    not bound by the expert opinion proffered in a factual vacuum:
R. v.
    McNeill-Crawford
, 2020 ONCA 504, 392 C.C.C. (3d) 127, at para. 40. The
    trial judge properly considered the issue of the D.N.A. evidence, having regard
    to all of the evidence adduced at trial as he was required to do:
R. v.
    Singh et al
., 2020 MBCA 61, at para. 69.

[23]

In his reasons, the trial judge was at pains to
    avoid an inference of guilt based on a finding, on a balance of probabilities
    standard, that there was no indirect transfer. Instead, the trial judge held
    the Crown to the beyond a reasonable doubt standard. Therefore, rather than
    using his finding regarding the D.N.A. to draw the inference that was open to
    him, the trial judge limited its use to a piece of circumstantial evidence that
    was consistent with the complainant's version of events. This use of the
    evidence in assessing the credibility of the parties worked to the appellant's
    benefit.

[24]

Further, there was nothing impermissible in the
    trial judge using this evidence as a piece of circumstantial evidence
    consistent with the complainant's version of events. Evidence does not become
    irrelevant simply because it can be interpreted in more than one way or because
    multiple inferences can be drawn from it. The trial judge's responsibility is
    to decide on the weight to be given the evidence in light of the other
    evidence:
R. v. Sutherland
, 2016 ONCA 674, 342 C.C.C. (3d) 309, at
    para. 36;
R. v. Carroo
, 2010 ONCA 143, 259 O.A.C. 277, at para. 33.
    The trial judge did just that, and there is no basis for appellate
    interference.

(b)

The Complainants Intoxication

[25]

The appellant submits the trial judge erred in finding
    that the complainants blood alcohol content was not sufficiently high enough
    to support a conclusion that he was not capable of distinguishing between a
    nightmare and the experience of his boss fondling his penis. He argues that
    this is another instance where the trial judge wrongly used speculation to
    bolster his credibility findings.

[26]

Specifically, the appellant says there are two
    problems with this finding. The trial judge was not entitled to infer the
    effects of a blood alcohol content on the complainant without evidence. Second,
    he says that the trial judge drew this inference from an incomplete evidentiary
    record. The evidence spoke only to the complainants blood alcohol content at
    the time of testing, not at the time of the assault. In addition, the trial
    judge did not consider that the complainant also had marijuana in his system.

[27]

The Crown submits that the point made by the
    trial judge was that there was no evidence adduced about whether alcohol, at
    any level, is capable of causing someone to hallucinate or lose the ability to
    distinguish between dream and reality. Further, the Crown says that it was open
    to the trial judge, in the absence of such evidence, to conclude that he could
    not infer any such effects.

[28]

In my view, in this part of his reasons, the
    trial judge was turning his mind to the critical issue of whether the
    complainant was so intoxicated that it prevented him from accurately perceiving
    what was happening to him. His reference to the complainant's blood alcohol
    content without mentioning the other evidence on the complainants intoxicated
    level was unfortunate. However, leaving aside whether extreme intoxication is
    capable of causing someone to lose the ability to distinguish between dream and
    reality, there was ample evidence to ground a finding that the complainant was
    not so intoxicated that he hallucinated or was in a delusional state.

[29]

For example, P.C. Ledwidge, who spoke with the
    complainant shortly after the sexual assault, testified that he was under the
    influence of alcohol, but he was coherent enough to have a conversation. The
    complainant was able to explain, in detail, to P.C. Ledwidge why he was at the
    appellants house and the events of the evening. In addition, there was also
    evidence from the appellant that the complainant remained coherent despite the
    amount of alcohol he drank. In cross-examination, the appellant was adamant
    that, throughout the night, the complainant was not extremely drunk.

[30]

I also agree with the Crown that
the complainants marijuana
use
    was a non-issue. The complainant smoked marijuana approximately 21 hours before
    the assault. He was clear in his testimony that he was not feeling any effects
    from it by the time he met the appellant. In addition, he testified that
    marijuana has never caused him to have delusions, and that mixing marijuana and
    alcohol had never affected his recall.

[31]

In summary, I am not persuaded that the trial
    judge engaged in speculation in his consideration of the complainant's level of
    intoxication. The record well supported his finding that there was no basis for
    concluding that the complainant was so intoxicated that he could not
    distinguish between a nightmare and an actual sexual assault.

(c)

The Appellants Intoxication

[32]

The trial judge found that if the appellant had
    been matching the complainant's drinking as he said he was, he would have been
    "quite intoxicated" when the responding officer arrived. The
    appellant submits that the trial judge had no evidentiary basis for concluding
    whether the appellant would have been intoxicated from drinking the same amount
    as the complainant.

[33]

I would not give effect to this argument. It
    highlights the folly in dissecting a trial judge's reasons and reviewing them
    in a piecemeal fashion. The more significant point that the trial judge was
    making concerned the vital issue of who was directing the alcohol consumption
    that evening. The complainant testified that the appellant told him to drink at
    every commercial, but that the appellant had very little to drink himself. In
    contrast, the appellant testified that the complainant was leading the drinking
    and that they consumed a significant amount together. This discrepancy was a
    critical issue in understanding the competing narratives of what occurred that
    evening.

[34]

The trial judge rejected the appellants
    suggestion that the complainant was in control of the amount of alcohol
    consumed. He found that the appellant was dominant and clearly a person of
    authority over the complainant. Further, he noted that it was the appellant's
    home and alcohol, and that the appellant was the complainant's boss and almost
    40 years older than the complainant. In his view, it was unlikely that the
    complainant would have chosen to consume excessive amounts of alcohol at his
    boss' house while trying to save his job. The trial judge also did not believe
    the complainant would be drinking as he was planning on driving home. As such,
    the trial judge found that the appellant was likely the one directing the
    consumption of alcohol. He noted that none of this was positive evidence of
    guilt, but that he was simply rejecting these portions of the appellant's
    evidence.

[35]

In this context, the trial judge did not believe
    the appellant's assertion that he had drunk as much as the complainant. That
    finding was supported by independent evidence. For example, the trial judge determined
    that the appellant gave no impression of being intoxicated when he spoke to the
    911 operator or P.C. Ledwidge. Further, during an interview by the police two
    months after the incident, the appellant said he was sober when P.C. Ledwidge
    and the ambulance arrived at his home.

(2)

The Reliability Assessment of the Complainant

[36]

The appellant further argues that the trial
    judge failed to consider evidence relevant to the material issue of the
    reliability of the complainants testimony, which he says amounts to a
    misapprehension of evidence. According to the appellant, that misapprehension
    played an essential role in convicting him and thereby undermined trial
    fairness.

[37]

The appellant submits that the fact the
    complainant believed he was assaulted is not determinative of guilt. The trial
    judge's reliability assessment needed to grapple with whether the complainant
    had falsely perceived the assault in a state of cognitive impairment. According
    to the appellant, the trial judge failed to consider several pieces of evidence
    regarding the complainants cognitive impairment at the time of the incident,
    including:

·

telling his sister that the devil was taking over his body and being
    unresponsive on the phone with her;

·

stating that he did not know where he was;

·

appearing unaware that their conversation ended when she phoned him
    back; and

·

telling the 911 operator that he did not "know anything"
    and that he thinks he is "screwed up" and that the appellant was
    giving him drugs.

[38]

Additionally, the appellant says that the trial
    judges reliability assessment also ignored that the complainant expressed
    reservations about whether he recalled the assault accurately. Finally, the appellant
    submits that the verdict on the count of unlawful confinement itself raised
    doubt about whether the complainant was able to perceive events accurately.

[39]

I would not give effect to this ground of
    appeal, which amounts to an invitation to redo the trial judges reliability
    assessment. The trial judge was alive to the complainants actions and
    statements after waking up, and drew an inference that his erratic behaviour
    was due to genuine traumatization. That was a finding open to the trial judge.
    We are long past the point in our jurisprudence where we impose on sexual
    assault victims stereotypical notions of how they are to behave after being
    assaulted and then assess their credibility and reliability based on whether
    their behaviour was consistent with those stereotypes.

[40]

In my view, the appellant also places undue
    emphasis on the complainant's statement about whether he recalled the assault
    accurately. It is correct that the complainant explained that he had doubts in
    the sense that he did "not [want] to think [the assault] actually happened."
    However, he was unshaken in cross-examination that he "know[s] it
    happened" and that he "wasn't imagining."

[41]

I also see nothing in the acquittal on the count
    of unlawful confinement that is supportive of this ground of appeal. The trial
    judge distinguished between the complainant's memory of waking to find his boss
    sexually assaulting him from his ability to recall what happened immediately
    afterward when he was increasingly in a state of emotional trauma. That was a
    sensible and available interpretation of the evidence.

(3)

Insufficient Reasons

[42]

In a submission largely overlapping the grounds
    of appeal considered above, the appellant argues that the trial judge provided
    insufficient reasons for his decision. According to the appellant, by
    speculating and ignoring critical evidence, the reasons insufficiently
    articulate how serious reliability concerns were resolved. He says that the
    primary concern was whether the complainants perception of the sexual assault
    was sufficiently reliable to ground a conviction.

[43]

The thrust of the appellant's submission is that
    the trial judge resolved this issue by relying on speculation and without
    reference to evidence which suggested that the complainant did not accurately
    perceive events. He argues that the central question remains unanswered when
    these errors are stripped from the reasons. In particular, sufficient reasons were
    needed to explain why the complainant feeling like the devil had taken over his
    body, falsely believing that the appellant gave him drugs, feeling screwed up
    and not knowing anything, and expressing doubts about what actually occurred,
    did not give the trial judge some concern that the complainant could not
    accurately perceive reality.

[44]

The most recent guidance from the Supreme Court
    regarding insufficient reasons is
R. v. G.F.
, 2021 SCC 20.
    Karakatsanis J., writing for the majority, said the following, at paras. 69-70:

[69] This Court has repeatedly and
    consistently emphasized the importance of a functional and contextual reading
    of a trial judges reasons when those reasons are alleged to be insufficient:
Sheppard
,
    at paras. 28-33 and 53;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R.
    621, at para. 19;
Hill v. Hamilton-Wentworth Regional Police Services Board
,
    2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101;
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 25;
R. v. R.E.M.
, 2008 SCC 51,
    [2008] 3 S.C.R. 3, at para. 15;
R. v. Laboucan
, 2010 SCC 12, [2010] 1
    S.C.R. 397, at para. 16;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at paras. 10, 15 and 19;
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, at para. 15;
R. v. Chung
, 2020 SCC 8, at paras. 13 and
    33. Appellate courts must not finely parse the trial judges reasons in a
    search for error:
Chung
, at paras. 13 and 33. Their task is much
    narrower: they must assess whether the reasons, read in context and as a whole,
    in light of the live issues at trial, explain what the trial judge decided and
    why they decided that way in a manner that permits effective appellate review.
    As McLachlin C.J. put it in
R.E.M.
, The foundations of the judges
    decision must be discernable, when looked at in the context of the evidence,
    the submissions of counsel and the history of how the trial unfolded: para.
    17. And as Charron J. stated in
Dinardo
, the inquiry into the
    sufficiency of the reasons should be directed at whether the reasons respond to
    the cases live issues: para. 31.

[70] This Court has also emphasized the
    importance of reviewing the record when assessing the sufficiency of a trial
    judges reasons. This is because bad reasons are not an independent ground of
    appeal. If the trial reasons do not explain the what and the why, but the
    answers to those questions are clear in the record, there will be no error:
R.E.M.
,
    at paras. 38-40;
Sheppard
, at paras. 46 and 55.

[45]

Further, Karakatsanis J. observed that
    particular deference should be afforded credibility findings, as they are often
    difficult to articulate with precision. This is especially the case in sexual
    assault cases. Karakatsanis J. stated, at para. 81:

[81] As
Slatter
demonstrates, a trial
    judge's findings of credibility deserve particular deference. While the law
    requires some articulation of the reasons for those findings, it also
    recognizes that in our system of justice the trial judge is the fact finder and
    has the benefit of the intangible impact of conducting the trial. Sometimes,
    credibility findings are made simpler by, for example, objective, independent
    evidence. Corroborative evidence can support the finding of a lack of voluntary
    consent, but it is of course not required, nor always available. Frequently,
    particularly in a sexual assault case where the crime is often committed in
    private, there is little additional evidence, and articulating reasons for
    findings of credibility can be more challenging. Mindful of the presumption of
    innocence and the Crowns burden to prove guilt beyond a reasonable doubt, a
    trial judge strives to explain why a complainant is found to be credible, or
    why the accused is found not to be credible, or why the evidence does not raise
    a reasonable doubt. But, as this Court stated in
Gagnon
, at para. 20:

Assessing credibility is not a science. It
    is very difficult for a trial judge to articulate with precision the complex
    intermingling of impressions that emerge after watching and listening to
    witnesses and attempting to reconcile the various versions of events.

[46]

With those comments in mind, I consider the
    sufficiency of the reasons issued by the trial judge. There is no merit in this
    submission, which, to my mind, is a reiteration of his argument that the trial
    judges credibility and reliability assessments were flawed. The trial judges
    reasons fairly read make plain that he concluded that the complainant was not
    hallucinating but was genuinely traumatized. It was this traumatization that
    the trial judge concluded was the explanation for the complainants behaviour
    post-sexual assault.

[47]

Obviously, the appellant disagrees with this
    finding, but this does not amount to insufficient reasons. In my view, the
    reasons of the trial judge are clear and do not frustrate appellate review.
    Consequently, I would reject this argument.

(4)

Uneven Scrutiny of the Parties Evidence

[48]

The final argument advanced by the appellant is
    that the trial judge subjected his evidence and the evidence of the complainant
    to different degrees of scrutiny. He says that the trial judge rejected his
    evidence because he disbelieved his account of who directed the drinking,
    because he disbelieved his amount of alcohol consumption, and because he
    described the complainants condition as a seizure. In addition, he submits
    that the trial judge's conclusion that the appellant could not have drunk as
    much as the complainant was a result of speculation. This, according to the
    appellant, is in sharp contrast to the trial judges use of speculation to
    boost the complainants credibility and reliability. Finally, he says that the
    trial judge ignored critical evidence and dismissed as insignificant many
    inconsistencies in the complainants testimony.

[49]

The law regarding the uneven security ground of
    appeal continues to develop. The seminal case on the point is
R. v. Howe
,
    (2005), 192 C.C.C. (3d) 480 (Ont. C.A.). In that case, Doherty J.A., at para.
    59, made clear the limited scope of this argument:

[59] [I]t is not enough to show that a
    different trial judge could have reached a different credibility assessment, or
    that the trial judge failed to say something that he could have said in
    assessing the respective credibility of the complainant and the accused, or
    that he failed to expressly set out legal principles relevant to that
    credibility assessment. To succeed in this kind of argument, the appellant must
    point to something in the reasons of the trial judge or perhaps elsewhere in
    the record that make it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the complainant.

[50]

In
G.F.
, Karakatsanis J. cast doubt on
    the utility of uneven scrutiny as an analytical tool to demonstrate error in
    credibility findings. However, in the absence of full submissions on the issue,
    she declined to determine whether uneven scrutiny is a helpful or independent
    ground of appeal.

[51]

In my view, this is yet another argument made by
    the appellant that essentially asserts that the trial judge erred in his
    credibility and reliability assessments. For the reasons stated above, I see no
    error in the trial judge's analysis. I also reject the argument that he
    subjected the evidence of the appellant and the complainant to different levels
    of scrutiny. The trial judge canvassed the alleged inconsistencies in the
    complainant's evidence. He held that these inconsistencies were minor and
    explained by the traumatic circumstances. Accordingly, there is no merit in
    this submission.

E.

disposition

[52]

For the foregoing reasons, I would dismiss the
    appeal. In accordance with the parties agreement, I would also dismiss as
    abandoned the appellants sentence appeal and his application to re-open that
    appeal.

Released: August 23, 2021 C.W.H.

C.W. Hourigan J.A.

I agree. B. Zarnett J.A.

I agree. S. Coroza J.A.


