



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. L.M., 2019 ONCA 945

DATE: 20191202

DOCKET: C65651

Benotto, Brown and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

L.M.

Respondent

Andrew Cappell, for the appellant

Maija Martin and David M. Reeve, for
    the respondent

Heard: October 30, 2019

On appeal
    from the acquittal entered on June 28, 2018 by Justice Gary W. Tranmer of the Superior
    Court of Justice.

Benotto J.A.:

[1]

The trial judge acquitted the respondent of
    sexual assault, sexual interference, invitation to sexual touching, and assault.
    The four charges against the respondent arose from allegations of sexual
    activity with his girlfriends daughter, who was between the ages of 11 and 14
    years old at the time of the alleged offences. The Crown appeals.

[2]

In a voluntary statement to the police, the
    respondent admitted to one instance of oral sex and one instance of
    penetration. He testified at trial and denied the allegations. The trial judge
    did not believe him and agreed with the trial Crowns characterization of
    specific pages within the police statement as a confession to a sexual
    crime upon the complainant.

[3]

The Crown submits that the trial judge failed to
    give effect to his own findings and seeks a conviction on two of the counts
    (sexual assault and sexual interference) or a new trial on all counts. The
    respondent submits that the trial judge had a reasonable doubt with respect to all
    counts and the appeal should be dismissed.

[4]

As I will explain, the trial judge engaged in
    faulty reasoning, which led to errors of law. Specifically, the trial judge
    failed to make necessary findings of fact and failed to reconcile the evidence with
    his conclusion. Consequently, his reasons are insufficient to permit appellate
    review. They are also insufficient to substitute a conviction on any of the
    counts. On this basis, I would allow the appeal and order a new trial.

FACTS

[5]

The complainant was placed in foster care when
    she was in grade two. Three years later, she returned to live with her mother,
    who began dating the respondent the following year. Within a short time
    thereafter, the complainants mother invited the respondent to move in with her.
    He was in his late forties at the time. Approximately two and a half years
    later, the complainant disclosed several incidents of sexual abuse by the
    respondent that began when she was 11 years old.

[6]

The following four incidents described by the
    complainant formed the basis of the charges:

(1)

The movie night

[7]

The respondent and the complainant were watching
    a movie on the couch sitting next to each other under a blanket. He reached
    down her tank top and played with her breasts. He then pulled out his penis and
    pushed her head down to it so that she could perform oral sex.

(2)

In the bunk bed

[8]

About one month after the movie night incident,
    while the complainant was lying on the top bunk of her bunk bed, the respondent
    started to play with her breasts and vagina. She tried to move away but he then
    put his penis in her mouth.

(3)

The two bed incident

[9]

At some point the bunk bed was replaced with two
    beds. The complainant was lying on top of one of the beds. The respondent got
    on top of her, took her pants off, then had intercourse with her and ejaculated
    on her stomach.

(4)

Moving day

[10]

During a move to a new house, the complainant
    and the respondent returned to the old house to retrieve items. The complainant
    was lying on a bed playing games on her phone. The respondent got on top of her
    and had vaginal intercourse with her from behind.

[11]

The complainant initially recanted the
    allegations but later said it was because she was worried about being taken
    away from her mother, who did not believe her allegations and had said that the
    complainant would cause them financial problems. As it turns out, after she
    made her second statement to the police resulting in the respondents arrest, the
    complainant returned to foster care.

[12]

The respondent was charged that he:

Count 1

DID
commit

sexual assault on [the complainant] contrary to
    Section 271, subsection (1) of the
Criminal
    Code of Canada
.

Count 2

AND FURTHER THAT,
he
    did with a part of his body, namely his penis for a sexual purpose, directly
    touch the body of a person under the age of sixteen years, namely [the
    complainant], contrary to Section 151 of the
Criminal Code of Canada
.

Count 3

AND FURTHER THAT,
he
    did for a sexual purpose, invite a person under the age of sixteen years,
    namely [the complainant], to directly or indirectly touch with a part of her
    body the body of [the respondent], contrary to Section 152 of the Criminal Code
    of Canada.

Count 4

AND
    FURTHER THAT,
he did commit assault on [the complainant],
    contrary to Section 266 of the Criminal Code of Canada
.

[13]

The respondent made three statements to the
    police that were admitted into evidence. In the first two statements, the
    respondent denied the allegations. Defence counsel acknowledged that these two
    statements were voluntary. The third statement, referred to at trial as the
    polygraph statement, is at issue in this appeal. At trial, following a
voir
    dire
,

the trial judge
found the statement to be
    voluntary. All three statements were admitted into evidence for the truth of
    their contents.

[14]

I
n the
polygraph
st
a
t
e
m
e
nt,
Warrant
    Officer Rose asked the respondent questions
. With respect to the movie
    night, the following exchange took place:

L.M.
:
And
a
s
I
m sitting li
k
e this
a
nd she
gra
bs
m
y
ar
m
a
nd
    pulls it down

Oh
c
ome on. And
I
m
N
o.

Th
e
n th
a
t

s
    wh
e
n she
s
pun
ar
ound
a
nd w
e
nt  down on m
e

a
nd th
e
n I
    jump
e
d up
a
nd I w
e
nt,

No. No. I love
y
o
u
r moth
er
not
y
ou.

DC Ros
e
:

Mmm hmm

L.M.:
I
n
    th
a
t
way
.

DC Ros
e
:

And
a
h wh
e
n she w
e
nt
    down on
y
ou how lon
g
did th
a
t
a
h t
a
ke pl
ace?

L.M.
:
Sec
onds. Not
e
v
e
n. As
s
oon
a
s
    I umm
rea
li
ze
d wh
a
t she w
a
s
g
oi
n
g to do umm wh
e
th
e
r
    she just put h
e
r ton
g
ue down
o
r h
e
r lips tou
c
h
e
d I just b
r
oke h
e
r
c
onn
ec
tion



L.M.:
S
h
e
s
fac
i
n
g the
    tv s
a
me
a
s I
am

a
nd sh
e
s not
rea
l
l
y l
ay
i
n
g on m
e
... b
u
t I h
av
e
m
y
ar
m up
o
n
    the
c
ou
c
h like this
a
nd she
gra
bs
m
y
    h
a
nd
an
d b
r
in
g
s it down
a
nd puts in onto h
e
r b
rea
sts
a
nd
    I move
m
y h
a
nd I put it b
ac
k

DC Ros
e
:

Mmm hmm

L.M.:
S
he
gra
bs it
aga
in
an
d put it down. I put it
bac
k up
a
nd I s
a
id,

[complainants
    name] no
.
 T
ha
t

s wh
e
n s
h
e
    spun
ar
o
u
nd like tu
r
n
e
d
fr
om h
e
r b
ac
k to h
e
r
face

co
v
ere
d
her
s
e
l
f

a
nd t
he
n she
wa
s
g
oi
n
g dow
n
she w
a
s smilin
g

a
t m
e

a
nd
a
nd
I
m lik
e

W
h
a
t
ar
e
y
ou doin
g?
 And th
e
n soons
a
s I
fe
lt
    she w
a
s tou
c
hing me th
ere
I stood up
a
nd
lef
t
    the
r
oom.



DC Rose:

And th
e
n she put h
e
r mouth on
y
our p
e
nis?

L.M.:
O
r
som
e
thing tou
c
h
e
d m
e
I don

t
    know if it w
a
s h
e
r v
ag
i
na
o
r


DC Rose:

Oh
y
ou know
n
ow
y
ou know
(
in
a
udibl
e
)
wa
s.

L.M.:
I
t
wa
s som
e

DC Rose:

H
e
r h
ea
d

s
g
oi
n
g down?

L.M.:
S
om
e
thin
g
w
e
nt
we
t
I
I
    don

t know
a
nd it w
a
s just the tou
c
h
a
nd
    soon
a
s sh
e
tou
c
h
e
d m
e
I jump
e
d up. I did not l
e
t h
er




DC Rose:

Down onto h
e
r
brea
st
    not on
ce
but twi
ce

a
nd
y
ou still n
e
v
e
r did
any
thi
n
g
a
bout it
y
ou still s
a
t th
ere

a
nd
    th
e
n she
en
g
age
d
    in o
ra
l s
e
x with
y
ou

L.M.:

T
r
i
e
d to. I didn

t
    l
e
t it h
a
pp
e
n.

DC Ros
e
:

Good
f
or
y
ou but she w
e
nt
    down on
y
ou
an
d
y
ou s
a
id
y
ou
fe
lt som
e
thing lik
e
to
uc
h
y
o
u
r
    p
e
nis

L.M.:

Y
ea
h.
Yea
h.

[15]

With respect to a second incident of sexual contact,
    the following exchange took place:

L.M.:

I tu
r
n
ar
ound
a
nd w
e
nt downst
a
i
r
s she
f
ollow
e
d
y
ou know pu
r
su
e
d m
e

a
nd umm
    w
a
nt
e
d to
e
ng
age

a
nd I
ke
pt
    d
eny
i
n
g h
er

a
nd d
eny
i
n
g
    h
er

a
nd d
eny
i
n
g h
er
. I
g
u
es
s I just must h
a
ve
g
ot w
ea
k
a
t one
    tim
e

a
nd
a
h
    I did
n
t lik
e

ac
tu
a
l
l
y
s
lip it into h
er
she
cam
e
a
nd s
a
t
    onto m
e

a
nd th
a
t

s wh
e
n I push
e
d
he
r
a
w
ay
.



L.M.:

You
    know umm it w
a
s p
r
ob
a
b
l
y just a b
a
d
    d
a
y
fo
r m
e
.
    You know?
I
m
ay
be I h
a
d a
c
ouple d
r
inks
    o
r

a
nd
I
w
ea
k. I must h
a
ve b
ee
n w
ea
k
a
n
d
she did th
a
t
a
nd
    s
a
t on m
e

a
nd
    th
e
n I push
e
d h
e
r o
ff
. I s
a
id,

No. This is just w
r
o
ng
. This is w
r
on
g
on so m
an
y l
e
v
e
ls
y
ou do not
y
ou don

t I do
n
t know w
h
y
y
o
ur
e doi
n
g
    this to m
e
.

DC Ros
e
:

Mmm hmm

L.M.
:

I
fee
l vi
c
timi
ze
d
i
n the
    s
e
nse th
a
t I
ke
pt pushing it
a
w
ay
pushing
a
w
ay
pushing
a
w
ay

a
nd th
e
n I
g
u
e
ss I
    just
fa
il
e
d h
er

y
ou know
a
s b
e
in
g
hono
ura
ble
e
nou
g
h... to
pre
v
e
nt
he
r
fr
om
g
oi
n
g
f
u
r
t
her.



DC Ros
e
:
[J]
ust a minute
ag
o
yo
u s
a
id
    th
a
t
y
ou did t
a
ke
    it out
a
nd slide it insid
e
?

L.M.:

No.
    I didn

t do th
a
t.
S
he did.

DC Ros
e
:

Ok
ay
. T
e
ll me wh
a
t

L.M.
:

S
he did.

DC Ros
e:

Th
a
t

s w
h
y I n
ee
d
y
ou to t
e
ll me wh
a
t h
a
pp
ene
d.

L.M.
:
A
f
t
e
r th
a
t I
we
nt downst
a
i
r
s
    s[
a]
t onto the
c
ou
c
h
a
nd she
ca
me
    ov
er

a
nd she
sa
t
r
i
g
ht di
rec
t
ly
on top o
f

m
y
gr
oin
area
.

DC Rose:

Mmm hmm

L.M.:

And
    she st
ar
t
e
d
r
ubbi
n
g it.

DC Rose
:

Mmm hmm

L.M.:

R
i
g
ht? And th
e
n
    sh
e
s she pulls down the p
a
nts
    su
c
ks it in
a
nd th
e
n I push
e
d
he
r
away




DC Rose
:

Did
y
ou
ge
t
ar
ous
e
d?

L.M.:
S
he
    st
ar
t
e
d
ar
ousing
    m
e
. Y
e
s. Of
c
ou
r
s
e
. An
d
th
e
n wh
e
n th
a
t
    h
a
pp
e
n
e
d
    she p
u
ll
e
d down h
e
r p
a
nt
s

a
nd
a
h sh
e
s
reac
hi
n
g b
e
hind
    like this
a
nd
gra
bs m
e

a
nd puts it in
a
nd
g
o
e
s to sit do
w
n
    on m
e

a
nd th
a
t

s wh
e
n I push
e
d
    h
e
r
away

a
nd
    w
e
nt,

No.
P
l
ea
se [name of the complainant] I don

t
    w
a
nt to do this. I don

t. No. I
    don

t n
ee
d to do th
a
t.
I
m
I
m
wa
y too bi
g
b
i
g
anyway
s
anyt
hi
n
g
    lik
e
I would
r
ip
y
ou
apar
t.



L.M.:

S
h
e
she didnt like
get
the
full
p
e
n
e
t
ra
tion of
m
y
endowment
no sir.
S
he just s
a
t onto it
an
d I pus
he
d h
e
r
a
w
ay
.



DC Rose:
W
h
e
n she st
ra
ddl
e
d
y
o
u

a
nd put
y
o
u
r p
e
nis inside of h
er


L.M.:

Y
e
s.

DC Ros
e:

Did
you ejaculate?

L.M.:

No.



L.M.:

Yeah.
    The
second
time she... I just like ok
ay
.
I
f thats what
you
    want
what the
you
know
and
    then
sin
c
e she put it in it w
a
s
    like

owe

like
Well

ca
use
I
m
fucking way
too big
f
or
you
. I would rip you. 

DC Ros
e
:
Hmm she h
a
d
a
a
har
d time putting
it
in?

L.M.:
Mmm
    hmm
S
o I s
a
id, It

s not
e
v
e
n like
    I
said
... h
a
lf
a
n in
c
h in it... just to s
ay
it w
a
s there.

[16]

At trial, the respondent denied the allegations
    against him. He acknowledged making the statements to Warrant Officer Rose, but
    said that at all times the complainant was the aggressor and he attempted to
    push her away.

THE REASONS FOR JUDGMENT

[17]

The trial judge began with a summary of the
    evidence.

[18]

He identified considerations that would support
    the reliability of the polygraph statement when he said:

Having watched the entire post-polygraph
    interview conducted by Warrant Officer Rose, I am completely satisfied that
    [the respondent] was engaged, responsive, attentive, and fully understanding of
    the conversation he was having with the officer. There is no indication
    whatsoever of a breaking down of the will of [the respondent], or of an
    oppressive atmosphere, or of [the respondent] saying whatever the officer
    wanted to get the interview over with.

In the
    cross-examination, [the respondent] testified that he told Warrant Officer Rose
    the truth. The examples I gave are real.

[19]

The trial judge then instructed himself as to
    the three stages in the
W.(D.)
analysis:
R. v. W.(D.)
, [1991]
    1 S.C.R. 742. At the first stage of
W.(D.)
, if the trial judge
    believes the evidence of the accused, he must acquit. The second stage of
W.(D.)
requires the trial judge to acquit the accused if he does not believe the
    accuseds evidence, but was left in reasonable doubt by it. Finally, at the
    third stage of
W.(D.)
, even if the accuseds evidence did not leave
    the trial judge with a reasonable doubt, the trial judge must decide whether
    the entirety of the evidence he accepted left him without reasonable doubt of
    the accuseds guilt:
W.(D.)
, at p. 758.

Stage one

[20]

At stage one, the trial judge again referred to
    the polygraph statement. He rejected the respondents claim that some of his
    statements were inaccurate because he was confused or stressed or hungry or
    thirsty or needed a break or too cold. Moreover, the trial judge agreed that
    the respondent used words that depicted an abnormal relationship with a
    stepdaughter, including:

·

This is like wrong on so many levels. This is
    not possible. Sorry, not doing this with you.

·

I feel victimized.

·

Shes asking for it and I refused her. I have enough problems in my
    life.

[21]

In addition, the trial judge found as follows:

[The respondent] made eight clear references
    to oral sex and eight clear references to penetration in his statement to
    Warrant Officer Rose. He denied such conduct in his trial testimony.

I agree with the
    Crown characterization of [the respondents] statement to Warrant Officer Rose
    as transcribed from pages 142 to 144 as a confession by him to a sexual crime
    against [the complainant].

[22]

After reviewing his concerns with the
    respondents testimony and the testimony of the complainants mother, the trial
    judge then commented that:

The Crown
    specifically seeks convictions based on [the complainants] allegations and did
    not specifically advance a position for conviction on the basis of his
    admissions. As indicated, there are some inculpatory statements made to Warrant
    Officer Rose in the course of that interview.

[23]

At the end of his stage one analysis, the trial
    judge concluded that he did not believe the respondents denials of the
    substantive allegations.

Stage two

[24]

At the second stage of
W.(D.)
, the
    trial judge stated that the defence evidence and the evidence favourable to the
    defence did not leave him with a reasonable doubt as to the respondents guilt.

Stage three

[25]

The trial judge began the third stage of the
W.(D.)
analysis as follows:

At this step, the
    court must give close scrutiny to the testimony of the complainant and the
    difficulties that arise in the complainants evidence.

[26]

He proceeded to analyze the complainants
    credibility and reliability. When listing the concerns with her credibility, he
    said:

Interest in sex

On her evidence,
    she has an interest in sex. She volunteered that she was taking sex education
    in school. She commented positively on [another individuals] statement as to
    size. She volunteered that an average boys penis is five and a half inches in
    explaining how the oral sex in the top bunk could have occurred.

[27]

Following the
W.(D.)
analysis, the
    trial judge concluded he must acquit the respondent because he was left with a
    reasonable doubt on the whole of the evidence.

ISSUES

[28]

The Crown submits that the trial judge erred by:
    (i) failing to give legal effect to his own factual findings; (ii) failing to
    consider the evidence as a whole in relation to the ultimate issue of guilt or
    innocence; and, (iii) taking into account the complainants interest in sex
    as a factor detracting from her credibility. The Crown seeks a conviction on counts
    one and two or a new trial on all counts.

[29]

The respondent submits that the trial judge had
    a reasonable doubt as to his guilt on the whole of the evidence and the appeal
    should be dismissed.

[30]

As I will explain,
the
    issues in this appeal arise from the trial judges analysis, which discloses
    three faults: (i) a failure to correctly address the third stage of
W.(D.)
;
    (ii) a reliance on a misunderstanding of the trial Crowns position; and, (iii)
    a reference to the complainants interest in sex. These issues led directly to a
    more general error that encompasses the Crowns grounds of appeal: the trial
    judges failure to make the findings of fact necessary to explain why he was
    left with a reasonable doubt. The reasons are not sufficient to permit
    appellate review.

ANALYSIS

[31]

I begin by setting out the considerations when
    the Crown appeals an acquittal. I then address the three faults in the trial
    judges reasoning and the insufficiency of his reasons that stemmed from these
    errors. Finally, I consider the appropriate remedy in allowing this appeal.

Appeal against acquittal

[32]

The Crowns right of appeal against an acquittal
    is restricted to questions of law alone:
Criminal Code
, R.S.C.
    1985, c. C-46, s. 676(1)(a). As this court has made clear in
R. v. Trachy
,
    2019 ONCA 622, at para. 68, questions of law include:

misinterpretation
    or misapplication of salient legal standards, including the elements of the
    offences; assessing evidence based on erroneous legal principles; making
    findings of fact not based on the evidence; failing to give legal effect to
    findings of fact or of undisputed facts; failing to consider all the evidence
    bearing on guilt or innocence; failing to properly admit evidence; and, failing
    to provide adequate reasons:
R. v. Fitton
,

[1956]
    S.C.R. 958;
R. v. Audet
,

[1996] 2 S.C.R. 171;
R.
    v. Ewanchuk
, 1999 SCC 711,
[1999]
    1 S.C.R. 330;
R. v. Graveline
,

2006 SCC 16
,
[2006]
    1 S.C.R. 609;
R. v. Walker
, 2008 SCC 34, [2008] 2 S.C.R.
    245;
R. v. Lutoslawski
, 2010 SCC 49, [2010] 3 S.C.R.
    60;
R. v. J.M.H
., 2011 SCC 45, [2011] 3 S.C.R. 197.

The trial judges analysis

[33]

I turn to the trial judges three errors set out
    above.

W.(D.) analysis

[34]

At the third stage of the
W.(D.)
analysis,
    the trial judge said that he must give close scrutiny to the testimony of the
    complainant and the difficulties that arise in the complainants evidence. At
    this stage, he was required to consider the whole of the evidence, including the
    admissions made by the appellant in his polygraph statement. Had he done so, the
    trial judge would have had to reconcile his findings with these statements and
    the ultimate acquittal.

[35]

I recognize that
W.(D.)
does not
    prescribe a sacrosanct formula. However, as the Supreme Court of Canada
    explained in
R. v. Dinardo
,
2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 23:

What matters is
    that the substance of the
W.(D.)
instruction be respected. In
    a case that turns on credibility, such as this one, the trial judge must direct
    his or her mind to the decisive question of whether the accuseds evidence,
considered in the context of
    the evidence as a whole
, raises a reasonable doubt as to his
    guilt. Put differently,
the trial judge must consider whether the evidence
    as a whole establishes the accuseds guilt beyond a reasonable doubt
. In my
    view, the substantive concerns with the trial judges decision in this case can
    better be dealt with under the rubric of the sufficiency of his reasons for
    judgment. [Emphasis added.]

[36]

That the trial judge focused exclusively on the
    complainants evidence at the third stage of
W.(D.)
, without considering the polygraph statement
    admissions,

is evident in his reasons when he referred to the decision
R. v. Nyznik,
2017 ONSC 4392:

[The trial judge]
    spoke of the difficulties that the court faces in assessing the credibility and
    reliability of the complainants evidence,
which stands
    largely on its own
, as [the trial judge] pointed out was often the case.
    [Emphasis added.]

[37]

In
Nyznik,
the sole contentious issue was
    the complainants consent. On this issue, the trial judge said that the
    complainants evidence stands alone: at para.  2. In the present appeal,
    consent was not an issue. The complainant was incapable of giving consent
    because she was under the age of 16 when the alleged offences occurred, and the
    respondent was in a position of trust towards her. Here, the issue was the
    sexual contact between the respondent and a child, and the complainants
    evidence did not stand alone. It had to be considered in the context of all the
    evidence that the trial judge accepted, including the polygraph statement.

[38]

The respondent submits that the trial judge must
    have rejected most of the polygraph statement because he only referred to a few
    pages as a confession when he said:

I agree with the
    Crown characterization of [the respondents] statement to Warrant Officer Rose
    as transcribed from pages 142 to 144 as a confession by him to a sexual crime
    against [the complainant].

[39]

I do not agree that, by referring to the three
    pages in the statement, the trial judge limited his characterization of a
    confession. These pages come at the end of a 147-page statement and clearly
    incorporate the rest of the statement. They include the following statements
    made by the respondent:

·

It wasnt something that I asked for.

·

I had a weak moment I was vulnerable.

·

[She] took advantage of that.

·

Im not sure what umm... the law will look at
    meas beingnot an aggressoryou knowa person ofummsexual crime I suppose
    but I dont hopefully they have leniency.

·

Ive been a a great person my whole life until thisIll be
    judged in the end.  So whatever the punishment is for thispunished for
    being a victim?  cause I wasnt strong enough to break it down to walk
    away from it. it wouldnt have occurred if that child hadnt have come on to
    me...and found that Im weak.

[40]

The statements on pages 142 to 144 are part of
    and incorporate the entire narrative. Further, had the trial judge taken such a
    narrow view of the statement, he would not  and could not  have said that the
    respondents statement was a confession by him to a sexual crime. In my view,
    the confession contained on those pages has no meaning unless it is interpreted
    in light of the respondents previous comments in the polygraph statement.

[41]

It appears that the trial judge may have been
    under the mistaken belief that he was required to be satisfied beyond a
    reasonable doubt of what actually happened when he referred again to

the trial judges guidance in
Nyznik
, at para. 12:

It is possible
    that the judge might not fully believe the defendants version of events and
    might find the complainants version to be more credible, but still be
    uncertain as to
what actually happened
. [Emphasis added.]

[42]

As jurors are repeatedly instructed, the
    evidence does not have to answer every question raised in the case, but only
    those matters that are essential to say whether the crime has been proven beyond
    a reasonable doubt: David Watt,
Watts Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015), at p. 231.


[43]

At the third stage of
W.(D.)
, the trial
    judge must determine whether, on the whole of the accepted evidence, the Crown
    has proven the elements of the offences beyond a reasonable doubt, not the
    details of what actually happened.

[44]

The Crown submits that the respondent is guilty
    of the first two counts: sexual assault and sexual interference.

[45]

Touching of a sexual nature is a requisite element
    of the offence of sexual assault. At the time of the alleged offence, the
    complainant was incapable of consent. The trial judges acceptance of portions
    of the polygraph statement as a truthful confession to a sexual crime coupled
    with his rejection of the respondents denials at trial could have satisfied
    the elements of this offence.

[46]

Likewise, there was evidence to support the
    elements of the offence of sexual interference. In the polygraph statement, the
    respondent admitted that he touched part of the complainants body, she was
    under the age of 16, and he did so for an arguably sexual purpose.

[47]

However, as I will discuss below, the trial
    judge neither made the requisite findings of fact nor explained his conclusion
    in a manner sufficient for this court to enter a conviction on the first two
    counts. There is no way of knowing why the trial judge said that he had a
    reasonable doubt with respect to the elements of the offences. As I will set
    out later, this court is left with only questions and consequently, the
    substantive concerns with the trial judges decision in this case can better be
    dealt with under the rubric of the sufficiency of his reasons for judgment:
Dinardo
,
    at para. 23.

Misunderstanding the Crowns submissions

[48]

The trial judge also appears to have misunderstood the trial Crowns
    position as being based exclusively on the complainants testimony, which
    further compounded his error. Contrary to the trial judges view, at trial the
Crown
did
place significant reliance upon the polygraph
    statement in seeking convictions. In fact, the trial Crown closed her
    submissions by emphasizing the importance of the admissions contained in the
    statement:

You have the transcript so Ive
    just paused it there and my concluding remarks are in this inculpatory
    statement, January the 18th, that was voluntary and informed and  the result of
    two other police interviews and an interest in clearing his name and no reason
    to doubt the veracity of any of the things that he said and the details that he
    went over again and again, that what youre hearing right here are the
    self-reflective, introspective remarks of a guilty man whos acknowledging his
    guilt for the first time and coming to terms with it and Im asking Your Honour
    to return verdicts of guilty on all counts.

[49]

The
    trial judge clearly misunderstood these submissions. But even if he did not
    misunderstand, and the trial Crown did rest on the complainants evidence, the
    trial judge was still required to consider the evidence as a whole.

The complainants interest in sex

[50]

Finally,
    the trial judge erred in law by referring to the complainants interest in
    sex when considering her credibility.

[51]

Evidence
    of a complainants prior sexual activity is never admissible to support the
    twin myths that the complainant is less worthy of belief or more likely to have
    consented to the activity. Consent of a child is irrelevant and, in these
    circumstances, impossible at law. Yet, the trial judge considered this evidence
    in reference to her credibility. It appears in the section of the reasons
    dealing with the complainants credibility. Other underlined headings include
    Lies and Motivated by Money.

[52]

Consideration of this evidence was an error of law.
[1]


Sufficiency of reasons

[53]

The flaws in the trial judges analysis lead
    directly to the insufficiency of his reasons
.
For example, had he
    considered the whole of the evidence at stage three of
W.(D.)
, he
    would have been required to reconcile the respondents polygraph statement and
    his disbelief of the respondents testimony with his conclusion of reasonable
    doubt. His failure to do so, preclude[s] meaningful appellate review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 50.

[54]

This is not a case where the trial judge accepts
    the evidence of the complainant and thus inferentially rejects the denials of
    the accused:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639;
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3. Here the trial judge flatly rejected the
    denials of the respondent, found his polygraph statement to be voluntary,
    called parts of it a confession, and never reconciled this evidence with an
    acquittal. Nor did he articulate the basis for his verdict.

[55]

This court is left with only questions. Did the
    trial judge mistakenly think that only the complainants evidence was
    significant at the third stage of
W.(D.)
? Did he think he had to be
    satisfied of exactly what occurred between the respondent and the complainant,
    rather than consider the elements of the offences? Did he misunderstand the
    trial Crowns position that the case rested on the allegations of the
    complainant? Did he misunderstand the law that he was required to look at the
    whole of the evidence
even if
the trial Crown had made submissions
    that the case rested on the complainants allegations? Did he conclude that 
    despite his indications in his reasons to the contrary  the polygraph
    statement was unreliable?

[56]

In short, the reasons do not reveal an
    intelligible basis for the verdict or explain how the trial judge could be
    left with a reasonable doubt despite his acknowledgement of the mountain of
    suspicion as to [the respondents] guilt:
Sheppard
, at para. 28;
R.E.M.
,
    at para. 53. The reasons are insufficient for appellate review. The reasons are
    not responsive to the central issues raised at trial. Although the trial judges
    credibility findings are entitled to deference, in this case the reasons do not
    sufficiently articulate how credibility concerns were resolved:
Dinardo
,
    at para. 26. This constitutes a reversible error.

By failing to
    address significant inconsistencies in the evidence, the trial judge did not
    provide a satisfactory explanation for the respondents acquittal, nor did he demonstrate
    he understood the parties respective positions:
R. v. D.H.
, 2016 ONCA
    569, at para. 35;
R. v. Morrissey

(1995), 22 O.R. (3d) 514 (C.A.), at
    para. 29;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21;
Dinardo
,
    at paras. 26, 30;
Sheppard
, at para. 28;
R.E.M.
, at paras.
    50, 53.

The Remedy

[57]

On appeal from a judge alone, an appellate court
    may enter a verdict of guilty with respect to the offence of which, in its
    opinion, the accused should have been found guilty but for the error in law:
Criminal
    Code
, s. 686(4)(b)(ii). As this court has explained, In that event, the
    court is authorized to either sentence the accused directly or remit the matter
    back to the trial court for sentencing (citations omitted):
Trachy
,
    at para. 86.

[58]

The Crown submits the trial judge made all the
    findings necessary to convict the respondent of the first two counts. Having
    made the finding that the respondent confessed to a sexual crime and that he
    did not believe the respondents denials of the complainants allegations, the
    trial judge was bound to convict because the elements of the offences had been
    proven. Therefore, the Crown submits that this court should enter convictions
    on counts one and two.

[59]

There are two impediments to the Crowns request
    for a conviction: (i) the trial judge never made the required findings of fact;
    and, (ii) he never reconciled the conflicting evidence.

Failure to make findings of fact

[60]

In his reasons referenced above, the trial judge
    makes findings that support the reliability of the polygraph statement.
    However, he does not make a finding about whether he accepts the respondents
    statements (or portions thereof) as the truth.

[61]

Likewise, the trial judge adopts the trial
    Crowns characterization of the statement as a confession to a sexual crime. He
    does not go on to make a finding about whether he accepts the respondents
    confession (or portions thereof) as the truth.

[62]

Similarly, the trial judge uses the terms
    admissions and inculpatory statement but fails to make a finding as to
    whether he accepts any portion as the truth. The trial judges use of familiar
    labels used to describe the kinds of evidence presented by the Crown 
    admissions and inculpatory statement - cannot be substituted for factual
    findings. Nor does the fact that the trial judge rejected the respondents
    evidence lead directly to a conviction. In my view, the trial judge was
    required to make findings as to what evidence  all, some, or none  he accepted
    as true.

Failure to explain reasons

[63]

In addition to the failure to make factual
    findings, the trial judge also failed to explain why  in light of the polygraph
    statement and his rejection of the defence evidence  he had a reasonable
    doubt. In his reasons, he alludes to two opposite conclusions: the respondent
    committed a sexual crime on the complainant, and he had a reasonable doubt as
    to the respondents guilt.

[64]

The fact that the trial judge never reconciled
    these two conflicting conclusions is the reason that I would allow the appeal. This
    omission is also an impediment to entering a conviction for it is impossible to
    know what the result would have been but for these errors in law.
This is not a case where there is a clear error of law
    which  but for the trial judges error  would have resulted in a conviction:
    see
R. v. Cassidy
, [1989] 2 S.C.R. 345, at pp. 354-355.

[65]

Clearly, there was enough evidence to convict.
    However, that is not the test. Ultimately, this court must ask the question:
    but for the error in law would a conviction be inevitable? I am unable to
    answer that question.

DISPOSITION

[66]

I would allow the appeal and order a new trial
    on all counts.

Released:
    December 02, 2019

M.L. Benotto J.A.:

I agree David Brown J.A.

I agree David M. Paciocco J.A.





[1]

It also would have been an error had the complainant been an
    adult for it would not have survived the tests in s. 276 of the
Criminal Code
.


