



WARNING

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

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

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

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

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

(iii)     REPEALED: S.C. 2014, c. 25, s.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

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

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

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

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

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.D., 2016 ONCA 574

DATE: 20160719

DOCKET: C59486

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

Brad Greenshields, for the appellant

Katherine Beaudoin, for the respondent

Heard: March 8, 2016

On appeal from the convictions entered on May 29, 2014
    and the sentence imposed on September 26, 2014 by Justice
Martin
    S.
James of the Superior Court of Justice, sitting without a jury.

Laskin
    J.A.:

A.

Overview

[1]

The appellant, R.D., appeals convictions for the sexual abuse of his
    step-daughter, K.Y.

[2]

K.Y. was born in 1993. She grew up in rural Ontario with her mother, the
    appellant, two older step-sisters, and two younger half-sisters. She testified
    that for a ten-year period beginning around 2002, when she was nine years old,
    the appellant sexually abused her once or twice a year, if that. Typically he
    came into her bedroom in the morning while she was still sleeping and no one
    was home. He lay down in bed beside her, fondled her vagina, and then had unprotected
    sexual intercourse with her, following which he generally went into the
    bathroom to ejaculate. She said that the last incident of sexual abuse occurred
    in May 2012, when she was 18, about a year after she had graduated from high
    school. She left home five months later and soon after reported the abuse to
    the police.

[3]

The appellant testified and denied that he had ever sexually abused K.Y.
    One of K.Y.s older step-sisters, A.D., also testified for the defence.

[4]

The trial judge convicted the appellant of sexual interference, sexual
    exploitation, and sexual assault, and sentenced him to four years and ten
    months in the penitentiary. After finding K.Y.s testimony to be credible and
    reliable, the trial judge concluded: Having accepted the evidence of the
    complainant, as I do, having found her testimony to be credible and reliable, I
    am prepared to flatly reject the conflicting testimony of the accused even
    though there are no obvious flaws with it.

[5]

The appellant appeals only his convictions, having abandoned his
    sentence appeal. He raises three issues:

(1)

In rejecting the appellants evidence because he accepted the
    complainants evidence, did the trial judge erroneously rely on this courts
    judgment in
R. v. J.J.R.D.
(2006),
    218 O.A.C. 37 (C.A.)
?

(2)

Did the trial judge misapply the burden of proof?

(3)

Did the trial judge err by holding that K.Y.s prior out-of-court
    statements to her mother were inadmissible?

B.

The Issues

(1)

Did the trial
    judge erroneously rely on this courts judgment in

R. v. J.J.R.D
.
?

(a)

Background

[6]

J.J.R.D.
is an important case about the sufficiency of a trial
    judges reasons. It has its origins in the Supreme Court of Canadas landmark
    decision in
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, where the
    Court first said that trial judges in criminal proceedings have a duty to give
    sufficient reasons for their decisions. Sufficiency is not a stand-alone ground
    of appeal but has to be assessed in the light of the purposes of reasons. Two
    important purposes are explaining to accused persons why they have been
    convicted and permitting effective appellate review:
Sheppard
, at paras.
    24-25. An appellate court asks: do the reasons tell the parties why the accused
    was convicted, and do they enable us to understand the basis for the trial
    judges decision?

[7]

Following
Sheppard
, provincial appellate courts appeared to
    disagree on whether these two purposes could be met by a trial judges
    conclusory rejection of an accuseds evidence. In this court the issue was
    resolved by Doherty J.A.s judgment in
J.J.R.D
. He wrote, at para. 53:

The trial judge rejected totally the appellants denial because
    stacked beside A.D.s evidence and the evidence concerning the diary, the
    appellants evidence, despite the absence of any obvious flaws in it, did not
    leave the trial judge with a reasonable doubt. An outright rejection of an
    accuseds evidence based on a considered and reasoned acceptance beyond a
    reasonable doubt of the truth of conflicting credible evidence is as much an
    explanation for the rejection of an accuseds evidence as is a rejection based
    on a problem identified with the way the accused testified or the substance of
    the accuseds evidence.

(b)

The trial judges
    reasons

[8]

The trial judge relied on
J.J.R.D.
in assessing the credibility
    of K.Y. and the appellant. He first framed the issue he had to decide as follows:

The issue in this case is whether the Court can reject the
    evidence of the accused and find him guilty solely on the basis of the Courts
    acceptance of the complainants evidence.

[9]

Next, the trial judge considered the appellants evidence. He found no obvious
    flaws in it:

My assessment of the evidence of the accused is that it is
    neither, impressive or unimpressive. His demeanour while testifying was
    unremarkable. His answers to the cross-examiners questions in substance and in
    tone did not appear evasive. He did not contradict himself. I have also
    considered that, his evidence being a general denial of the complainants
    allegations must necessarily lack details. There was no obvious flaw or shortcomings
    in his testimony.

[10]

The trial judge then extensively canvassed K.Y.s evidence. He found her
    evidence to be completely credible:

At the same time, as for the complainant, I found her to be
    completely credible. She gave her evidence in a manner that sounded like she
    was recalling real incidents. She acknowledged that she remained outwardly
    friendly to the accused. She gave him hugs at appropriate times at family
    gatherings. She asked him for rides on occasion. She said she wasnt afraid to
    go with him in the car because he had never assaulted her in the car.

[11]

The trial judge considered various discrepancies in K.Y.s evidence
    but held that they did not undermine her core allegations of sexual abuse:

Despite these questions and answers, the complainant was
    unshaken in her testimony respecting the particulars of the assaults and the
    circumstances in which they occurred.

The complainant did not exaggerate or engage in hyperbole. She
    did not hesitate when giving her answers. She answered questions directly and
    was not evasive or defensive. She did not challenge counsel when pressed during
    cross-examination. I found her to be a thoroughly credible witness who gave
    truthful and reliable evidence.

[12]

The trial judge accepted that he could not reject the accuseds evidence
    by looking only at his testimony.  He said  correctly  that he was required
    to consider all the evidence to determine whether there was a reasonable doubt
    about the accuseds guilt. He concluded in words drawn from
J.J.R.D.
,
    but which the appellant now challenges on appeal:

Standing alone the evidence of the accused cannot support a
    finding of guilt, but when weighed against the totality of the evidence and in
    particular the evidence of the complainant, I am not left with a reasonable
    doubt regarding the guilt of the accused.

Having accepted the evidence of the complainant, as I do,
    having found her testimony to be credible and reliable, I am prepared to flatty
    reject the conflicting testimony of the accused even though there are no
    obvious flaws with it.

(c)

Discussion

[13]

The appellant submits that the trial judge erred by finding him guilty
    solely because he accepted that K.Y.s evidence was credible. Indeed, the
    appellant contends the trial judge set out the issue he had to resolve using
    precisely that incorrect framework. Doing so ignored the reasonable doubt
    standard. Instead, the trial judge had to consider whether, based on the
    evidence as a whole, he could accept K.Y.s evidence beyond a reasonable doubt
    even if he did not accept the appellants evidence. The appellant relies on
    this courts decision in
R. v. O.M.
, 2014 ONCA 503, 318 O.A.C. 390, which
    he says qualifies or at least clarifies
J.J.R.D
.

[14]

I do not agree with the appellants submission. In my view,
J.J.R.D.
and
O.M.
are entirely consistent, and the trial judges reasons are
    faithful to them.

[15]

J.J.R.D
. and
O.M
. make two important and related
    points: one about the sufficiency of a trial judges reasons; the other about
    the burden of proof. For convenience, I repeat para. 53 of Doherty J.A.s
    reasons in
J.J.R.D.
:

The trial judges analysis of the evidence demonstrates the
    route he took to his verdict and permits effective appellate review. The trial
    judge rejected totally the appellants denial because stacked beside A.D.s
    evidence and the evidence concerning the diary, the appellants evidence,
    despite the absence of any obvious flaws in it, did not leave the trial judge
    with a reasonable doubt. An outright rejection of an accuseds evidence based
    on a considered and reasoned acceptance beyond a reasonable doubt of the truth
    of conflicting credible evidence is as much an explanation for the rejection of
    an accuseds evidence as is a rejection based on a problem identified with the
    way the accused testified or the substance of the accuseds evidence.

[16]

At para. 42 of
O.M.
, which the appellant relies on, my
    colleague Cronk J.A. cautioned:

It is elementary that a complainants credibility cannot be
    established by assuming the accuseds guilt.
Nor can an
    accuseds evidence be rejected simply because the evidence of a complainant is
    accepted
.
W.(D.)
precludes this either/or approach to the
    assessment of credibility. Instead, under the third step of
W.(D.)
, the
    trial judge must ask whether, although she may not believe the accuseds
    evidence, a reasonable doubt arises on the whole of the evidence that she does
    accept. [Appellants emphasis.]

[17]

Three paragraphs later, Cronk J.A. quotes and relies on para. 53 of
J.J.R.D.
:

The trial judge did not err by factoring the strength of the
    Crowns case into his credibility and reliability analyses and by relying on it
    as one basis for rejecting the appellants denials of the alleged assaults.
    This court has held that an accuseds evidence may be rejected based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    the conflicting credible evidence of the prosecutions witnesses. In
R. v.
    J.J.R.D.
, at para. 53, Doherty J.A. said

[18]

The sufficiency point: the bare rejection of an accuseds evidence will
    meet the two important purposes for giving sufficient reasons  explaining why
    the accused was convicted, and permitting effective appellate review  provided
    that the bare rejection is based on a considered and reasoned acceptance of a
    complainants evidence. Implicitly, the bare acceptance of a complainants
    evidence and the bare denial of an accuseds evidence (I accept the complainants
    evidence; therefore I reject the accuseds evidence) are unlikely to amount to
    sufficient reasons. A trial judge who relies on the formulation in
J.J.R.D.
should at least give grounds for accepting a complainants evidence.

[19]

In
J.J.R.D.
,
Doherty J.A. placed his point about the sufficiency of reasons in the context
    of the evidence as a whole and the reasonable doubt standard. The accuseds
    denial in that case, when stacked beside the complainants evidence and her
    diary entries, did not leave the trial judge with a reasonable doubt. And so
    Doherty J.A. explained that an outright rejection of an accuseds evidence
    may be based on a considered and reasoned acceptance
beyond
    a reasonable doubt
of the truth of conflicting credible evidence
    (emphasis added). In doing so, he addressed the need for the trial judge to be
    convinced that the conflicting credible evidence established the accuseds
    guilt beyond a reasonable doubt.

[20]

The burden of proof point: a trial judge who says only I reject the
    accuseds evidence because I accept the complainants evidence risks being
    held by an appellate court to have chosen which of the two parties to believe
    and failed to determine whether, on all the evidence, the accuseds guilt had
    been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned
    about in
O.M.
But, as
O.M.
also shows, a trial judge can still reject an
    accuseds evidence because either the complainants evidence or other evidence
    establishes the accuseds guilt beyond a reasonable doubt. Thus,
J.J.R.D.
and
O.M.
are entirely consistent.


[21]

In the case before us, the trial judges reasons were sufficient. He did
    summarily reject the appellants evidence though it had no obvious flaw in it.
    But he did so based on a considered and reasoned acceptance of K.Y.s
    evidence. He discussed her evidence at length, including the discrepancies in
    it, and gave several grounds for why he found her evidence to be both credible and
    reliable.

[22]

The trial judge also properly applied the burden of proof. In his
    initial formulation of the question, he did use language similar to that
    cautioned against in
O.M.
But the rest of his reasons show he properly
    applied the reasonable doubt standard. He expressly instructed himself that he
    must avoid an either/or approach in choosing between competing versions of
    what actually happened. He said that [g]uilt or innocence is to be determined
    by considering all of the evidence. And then he found:

Standing alone the evidence of the accused cannot support a
    finding of guilt, but when weighed against the totality of the evidence and in
    particular the evidence of the complainant, I am not left with a reasonable
    doubt regarding the guilt of the accused.

[23]

That finding, in substance, is the same finding made by the trial judge
    in
J.J.R.D.
and upheld by this court. I would not give effect to the
    appellants submission on the first issue.

(2)

Did the trial
    judge misapply the burden of proof?

[24]

The appellant submits the trial judge misapplied the burden of proof in
    two ways: in finding K.Y.s evidence credible, the trial judge overemphasized
    her demeanour; and he failed to consider whether the exculpatory evidence of
    K.Y.s older sister A.D., who testified for the defence, raised a reasonable
    doubt. I do not agree with either branch of the appellants submission.

[25]

On the first branch, in assessing K.Y.s evidence and finding it
    credible, the trial judge did say she sounded authentic and she sounded like
    she was recalling real events. But these comments were relatively minor points
    in his credibility analysis. Despite academic and judicial commentary
    suggesting demeanour evidence is unreliable, under Canadian jurisprudence it
    remains relevant to the assessment of a witnesss credibility: see, for
    example,
R. v. N.S.
, 2012 SCC 72, [2012] 3 S.C.R. 726; and
O.M.
,
    at para. 34. As long as a trial judge does not unduly rely on demeanour to make
    a credibility finding, the trial judge will not fall into error. Here, the
    trial judge did not unduly rely on K.Y.s demeanour in finding her evidence
    credible.

[26]

On the second branch, A.D. is the appellants daughter from a previous
    marriage. She was 26 when she testified at trial. She gave evidence about a
    Skype conversation she had with K.Y. in September or October of 2012. She
    claimed K.Y. told her she had lost her virginity to J.M., who later became
    K.Y.s fiancé. According to A.D., K.Y. said that when she had sex with J.M., it
    was the first time she had had sex with anyone.

[27]

K.Y. acknowledged the Skype conversation and that she had sex with J.M.
    But she denied telling A.D. she was previously a virgin. At trial, she said the
    appellant was the first person she had sex with.

[28]

If,

after considering all of the
    evidence, the trial judge had accepted A.D.s version of the Skype conversation
    or found that it raised a reasonable doubt about whether K.Y. and the appellant
    had ever had sex, then the appellant would be entitled to an acquittal. But the
    trial judge rejected A.D.s evidence. He said:

I do not accept the evidence of A.D. on this issue. Ms. D. is
    clearly aligned with her father, the accused. At best, I conclude that she may
    have misinterpreted what she was told by the complainant.

[29]

The trial judge had good reasons for not accepting A.D.s evidence. A.D.
    admitted she resented K.Y. for breaking up the family and having the appellant
    arrested. Then she admitted writing offensive comments about K.Y. and K.Y.s
    mother on her Facebook page. The trial judge did not err because he did not
    expressly advert to whether A.D.s evidence raised a reasonable doubt about the
    appellants guilt. That it did not raise a reasonable doubt was evident from
    the trial judges rejection of A.D.s evidence and his acceptance of K.Y.s
    testimony.

[30]

I would not give effect to the appellants submissions on the second
    issue.

(3)

Did the trial
    judge err by holding that K.Y.s prior out-of-court statements to her mother
    were inadmissible?

[31]

For ten years, K.Y. did not tell anyone in authority outside the home that
    the appellant had sexually abused her. She testified she was afraid that if she
    disclosed the abuse the family would split up and she would go into foster
    care.

[32]

K.Y. did, however, disclose the abuse to her mother. K.Y. testified that
    when she was twelve or thirteen, her mother told her for the first time that
    the appellant was not her biological father. K.Y. responded that the appellant
    had touched her inappropriately, and she pointed to her vagina. K.Y.s mother
    said they would talk later and, when they did, her mother questioned K.Y. about
    what had happened. K.Y. became uncomfortable and told her mother it was just a
    bad dream.

[33]

After the initial conversations, K.Y.s mother again asked her daughter
    whether the appellant had really sexually abused her. K.Y. testified at trial
    that she lied to her mother and said he had not; it was just a bad dream.

[34]

The trial judge heard this evidence about K.Y.s statements to her
    mother and ruled it inadmissible. He took the view that K.Y.s out-of-court
    statements to her mother were prior consistent statements, which could not be
    used to bolster her trial testimony, and were not needed to rebut a claim of
    recent fabrication.

[35]

The appellant acknowledges that as K.Y. did not adopt at trial her
    previous denials of the abuse, these denials could not be used for the truth of
    their contents. But the appellant submits that the trial judge erred in ruling
    K.Y.s previous statements inadmissible on two grounds. First, they were
    admissible as part of the narrative as they put what allegedly occurred in context.
    Second, K.Y.s previous denials of abuse were not prior consistent statements.
    They were prior inconsistent statements. Therefore, though not admissible for
    their truth, they were relevant and admissible to assess the reliability of her
    trial testimony:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at
    paras. 12-13.

[36]

On the appellants first ground, I agree K.Y.s previous statements to
    her mother were admissible as part of the narrative and sequence of what
    occurred. Nothing turns on this apparent error of the trial judge. He heard the
    evidence and considered it in his reasons.

[37]

On the appellants second ground, K.Y.s previous statements to her
    mother had both consistent and inconsistent aspects. Her initial disclosure of
    sexual abuse was a consistent statement. Her later denials or recantations were
    inconsistent statements. As the appellant submits, these inconsistent
    statements were relevant to assessing the reliability of K.Y.s evidence at
    trial.

[38]

Still, though the trial judge ruled the statements inadmissible, later
    in his reasons he considered K.Y.s denials. He accepted her explanation for
    why she insisted the appellants abuse was part of a bad dream:

There was an air of resignation in her description of the
    assaults. He was the only father she had ever known. She was afraid the
    disclosure would rupture their family. She was afraid that if she told someone
    what was happening, she may have to live somewhere else or go into foster care.
    When asked by a staff member at her school, if something was going on at home,
    she denied any problems. Her mother was not employed, so there was a lack of
    economic independence. Her family lived in the country, there was nowhere to go
    except when she got rides to go into town.



After she moved to Belleville, the complainant acknowledged
    that she engaged in Facebook communications and dialogue with the accused. These
    communications were put in evidence at the trial and they had a friendly and
    familiar tone to them.

At the same time, there was a sense of passivity and acceptance
    of her lot in life, in the way the complainant gave her evidence. Her reason
    for not disclosing when she did, after learning that her younger sister would
    be spending more time at home alone with the accused, sounded authentic. She
    seemed prepared to accept without complaint what had happened to her, but she
    wasnt prepared to risk having her sister assaulted as well.

[39]

The trial judge concluded that K.Y.s refusal to disclose the abuse did
    not detract from the credibility or reliability of her evidence. On the record
    before him, the trial judge was entitled to come to that conclusion. I would not
    give effect to the appellants submission on the third issue.

C.

Conclusion

[40]

For the above reasons I would dismiss the appeal. At bottom, the
    appellant challenges the trial judges credibility findings. There is no basis
    for this court to interfere with those findings.

Released: July 19, 2016 (J.L.)

John Laskin J.A.

I agree. E.A. Cronk J.A.

I agree. B.W. Miller J.A.


