



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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.A., 2017 ONCA 714

DATE: 20170914

DOCKET: C61946

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.A.

Appellant

Howard L. Krongold, for the appellant

Rachel Young, for the respondent

Heard: May 3, 2017

On appeal from the conviction entered on December 17,
    2015 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2015 ONSC 7494.

Huscroft J.A.:

OVERVIEW

[1]

The appellant was convicted of sexual interference, invitation to sexual
    touching, and sexual assault against a minor pursuant to ss. 151, 152, and 271
    of the
Criminal Code
, R.S.C. 1985, c. C-46, respectively. The trial
    judge stayed the sexual assault and invitation to sexual touching counts
    pursuant to
Kienapple v. R.
,
    [1975] 1 S.C.R. 729.
The
appellant was
    sentenced to 20 months imprisonment followed by 2 years probation for sexual
    interference. He appeals his conviction only.

[2]

The offences were committed against the
    complainant, the daughter of D.D., when she was between the ages of three and
    five-years old. The appellant was
approximately 40 years
old
when he committed these offences. He was in
    a conjugal relationship with the complainants mother, D.D., and had moved into
    her apartment. The appellant often looked after the complainant while D.D. was
    at work. The
offences involved
the
    appellant
having the complainant masturbate his
    penis until he ejaculated
.

[3]

The appellant testified at trial and categorically denied the
    allegations.

[4]

The
trial judge found that the
    appellant testified in a straightforward manner, that he was not evasive and
    did not exaggerate, embellish or colour his evidence, and that he withstood
    cross-examination without a blemish. However, the trial judge accepted the complainants
    evidence in its entirety and found the appellant guilty beyond a reasonable
    doubt.

[5]

The appellant raises two grounds of appeal. First, he submits that the
    trial judge failed to resolve a critical inconsistency in the complainants
    evidence and failed to explain why he accepted the complainants evidence and
    rejected the appellants. This ground was the focus of the appellants
    submissions during oral argument. Second, the appellant submits that the trial
    judge failed to consider innocent explanations for the complainants knowledge
    of a penis and sexual acts in determining whether a reasonable doubt arose.

[6]

I would dismiss the
appeal for the
    reasons that follow.

THE
    EVIDENCE AT TRIAL

[7]

The Crown tendered two video statements and called two witnesses: the
    complainant and her mother, D.D. The first video statement was recorded by D.D.
    on her cell phone at home shortly after the complainant first disclosed the
    allegations against the appellant to her. The second video statement was
an interview recorded by
the police several
    days later. Both video statements were admitted on consent under s. 715.1 of
    the
Criminal Code
. The
    complainant adopted and affirmed the truth of her video statements at trial.

[8]

In the statement recorded by D.D., the complainant explained that she
    shook [the appellants] bird, then white stuff came out. The complainant said
    that she did not take off her pants, but that the appellant took off his pants
    and underpants and told her to shake his bird. She demonstrated by holding
    D.D.s index and middle fingers and shaking them. The complainant said that the
    appellant made her do this three times. The video also shows the complainant
using a bubble blowing wand and a toy unicorn to demonstrate
    to D.D.
what the appellant made her do
.
She
    also used a white stuffed poodle to represent the white stuff coming out of
    the bubble wand.

[9]

The complainant made similar allegations in the video statement recorded
    by the police. She used a stuffed bear to represent the appellant and a pen to
    represent his bird. She shook the police officers finger to demonstrate how
    she shook the appellants bird. She said that white stuff came out and
    again said that this happened three times. She said that she remained clothed
    and that the appellant did not touch her.

[10]

In
    her testimony at trial, the complainant described the appellants bird as
    white just like a tree something that has a  like a mushroom stem.  like a
    mushroom stem and then it had like a puffy thing around it. In response to a
    question from the trial judge, she said that there was a little triangle at
    the top of the stem with a hole. The complainant also drew a picture of the
    appellants penis ejaculating.

[11]

The
    complainant testified that the appellant told her to come to D.D.s room and
    that he was on the bed while she stood on the floor. The complainant testified
    that white stuff came from the appellants bird that looked like milk or
    cream and that the appellant pulled his pants up after the white stuff came
    out. The complainant stated that she washed her hands in the kitchen because
    the white stuff was all over them. She described the temperature of the white
    stuff as cold.

[12]

The
    complainant testified that she had never seen the appellant and D.D. wrestling
    on the bed with their clothes off. She did not think she had seen a bird on
    television or in a movie, but in cross-examination she testified that she
    thought she had seen a bird in a movie she watched at home. She stated that the
    bird in the movie did not look like the appellants, that no one shook it,
    and that no white stuff came out of it. The complainant testified, further, that
    she watched the movie Seed of Chucky with D.D. and the appellant during one
    of the regular movie nights
they had.
In
    that movie, a doll is depicted masturbating (without a penis being shown) and
    holding a cup of white fluid. Another doll is seen holding a turkey baster with
    white fluid in it.

[13]

In
    re-examination, the complainant testified that she was not allowed to watch any
    parts of movies in which people were naked and that D.D. would put a pillow
    over her or cover her eyes so she could not see the television.

[14]

D.D.
    testified that the complainant and the appellant were like best friends. She
    confirmed that the complainant had seen the Seed of Chucky movie and some
    horror
movies
, but said that they did not
    show male anatomy. D.D. stated that she did not let the complainant watch
    nudity in movies and would cover her eyes with a pillow or her hands.

[15]

D.D.
    testified that the complainant entered her bedroom on one occasion when she and
    the appellant were naked and having sex. The appellant was on top of her but they
    covered up quickly with a blanket and the complainant did not really see
    anything. She did not know how long the complainant was in her bedroom before
    she observed her, but said that she remained for three to five seconds. D.D.
    testified

that the appellants penis was
    not exposed.

[16]

The
    appellant testified and categorically denied all the allegations.

[17]

The
    appellant testified that he had a great relationship with the complainant. He
    confirmed that they watched the Seed of Chucky movie and some other horror
    movies. He said that D.D. covered the complainants eyes during nude scenes in
    some cases, but there were times that she did not.

[18]

The
    appellant testified that the complainant entered the bedroom he shared with
    D.D. on at least three occasions. On the first occasion, the complainant
    observed the appellant and D.D. naked and having sex in the doggie-style
    position for an unknown period of time. He believed that she saw his erect
    penis for maybe a second on this occasion. On the second occasion, the
    complainant entered their bedroom and walked straight to the bed. The appellant
    testified that he and D.D. were completely covered and the complainant had no
    opportunity to see his penis. On the third occasion, the complainant walked
    into the bedroom while they were having sex, with D.D. on her back and the
    appellant on top of her. He could not recall whether they were covered at the
    time.

[19]

The
    appellant also testified that two pornography videos were kept in D.D.s CD
    rack behind other videos, but that he did not think the complainant had ever
    seen them.

(1)

The inconsistency

[20]

The
    inconsistency arises out of a hearsay statement the complainant made to D.D.,
    which D.D. testified prompted her to make the video recording of the
    complainants allegations on her cell phone.

[21]

D.D.
    testified that the complainant disclosed the sexual abuse allegations against
    the appellant to her spontaneously. The complainant said that she had seen the
    appellants bird and that he had chased her around the apartment and tried to
    put it in her mouth (the oral sex allegation). D.D. testified that she began
    video recording her daughter on her cellphone after this initial disclosure.

[22]

The
    complainant did not repeat the oral sex allegation in her mothers cell phone recording,
    the interview she gave to the police, or her testimony. On the contrary, in
    cross-examination she testified that the appellant never tried to put his bird
    in her mouth and that she never told her mother that he had tried to do so. The
    complainant gave the following evidence:

Q:      Okay
    and [the appellant] never chased you around the house with his bird?

A:      No.

Q:      No.
    Okay and he never  you never tried to put your bird  his bird in your mouth,
    did he?

A:      No.



Q:      And you
    never told your mom that he tried to put his bird in your mouth?

A:      No.

Q:      Okay.

A:      That wasnt even true.

Q:      Cause thats just not true, right?

A:      Right.

[23]

The
    appellant also specifically denied the oral sex allegation:

Q:      She 
    you heard her say to her mother, just  that you chased her around the house
    and tried to stick your penis in her mouth. Your bird in her mouth, you heard
    her say that?

A:      I did.

Q:      Did that ever happen?

A:      Absolutely not.

(2)

The hearsay application

[24]

D.D.s testimony proceeded as a blended
voir dire
.
T
he Crown adduced three
hearsay statements from
    D.D.,
and argument on their admissibility was
    reserved to the end of the Crowns case.


[25]

The first involved the oral sex
    allegation. The oral sex allegation was part of a larger statement that
    included a description of the appellants penis  in particular, a blue vein
    that ran up his bird  and description of the white stuff as warm, contrary
    to the complainants testimony that it was cold.

[26]

The other two hearsay statements
    were made by the complainant to D.D. the day after she first disclosed to D.D. what
    had happened.

[27]

In the first of these statements,
    the complainant described the appellants bird. She said that it was smaller
    than her fathers and looked more like the bird of her four year-old cousin.
    The complainant told D.D. that she had seen her fathers penis when she walked
    in on him in the bathroom, before he covered himself with a towel. In the
    second, the complainant said that little mouse drops had come from the
    appellants bird, rather than the large volume she had indicated in the video
    using a stuffed animal.

[28]

Crown counsel took the position
    that the hearsay statements were essentially corroborative of the rest of the
    evidence. He acknowledged that there were inconsistencies but submitted that
    the statements were detailed, particular, and an unprompted disclosure to D.D.
    of things that the complainant would otherwise not necessarily know.

[29]

Defence
    counsel focused on the admission of the statement made prior to the making of
    the cell phone video, submitting that it
was
unreliable because, among other things, D.D. testified that she did not recall
    everything that the complainant said to her prior to making the video. Defence
    counsel also argued that the statement was unnecessary because the complainant provided
    evidence through her testimony and video evidence had been admitted.

[30]

The
    parties submissions did not focus on the oral sex allegation. In his reply
    submissions, Crown counsel submitted that some or all of the hearsay statement involving
    the oral sex allegation was admissible for the fact that it was said or for
    context, background, and narrative in terms of the way the disclosures came out.
    I mean, there  theres different possibilities in terms of Your Honours
    ultimate determination as to the use and admissibility of this evidence.

The trial judges reasons

(1)

Hearsay ruling

[31]

The
    trial judge found that D.D. did not begin her cell phone recording until the
    complainant
had
made certain
utterances.

[32]

He
    recognized that the hearsay statements made by the complainant to D.D. were presumptively
    inadmissible. However, in
R. v. Khan
,
    [1990] 2 S.C.R. 531, the Supreme Court held that hearsay statements that fall outside
    recognized exceptions may nevertheless be admissible if they meet the threshold
    criteria of reliability and reasonable necessity. The trial judge also relied
    on this courts decision in
Khan v. College
    of Physicians and Surgeons of Ontario
(1992), 9 O.R. (3d) 641 at
    657 (C.A.), in which Doherty J.A. explained:

[If a] tribunal is satisfied that
    despite the
viva voce
evidence of the child, it is still reasonably
    necessary to admit the out-of-court statement in order to obtain an accurate
    and frank rendition of the childs version of the relevant events, then the
    necessity criterion set down in
Khan
is satisfied. [Citation omitted.]

[33]

The
    trial judges analysis of the admissibility issue is set out in this brief passage:

The unrecorded statements of [the
    complainant] to her mother are all part of a spontaneous and unsolicited free
    flow of thought by her, that is to say the child. The statement she made the
    following day was again initiated entirely by her and intended to clarify a
    certain matter, namely the amount of white stuff which she said she had
    actually encountered during the represented episodes with the accused and her
    size comparison of the penis of the accused. Nothing she said in these
    statements at issue raised with me a concern of reliability.

Her age and the sensitive nature
    of the evidence in my view meet the test of reasonable necessity. I find that
    the probative value of this evidence outweighs any prejudice to the accused. On
    a threshold basis, these statements will be admitted.

(2)

Reasons for
    conviction

[34]

The
    trial judge reminded himself that his verdict was not to be based on a choice
    between the evidence of the accused and the evidence of the Crown. He also
    acknowledged the
need to be guided
by the
three-part test set out
in
R. v W.(D.)
, [1991] 1 S.C.R. 742
. He also
reminded himself not to apply adult
    tests for credibility to the evidence of the child complainant
,
in accordance with
R. v. B.(G
.
)
,
    [1990] 2 S.C.R. 30 and
R. v. W.(R.)
, [1992] 2 S.C.R. 122.

[35]

The
    trial judge neither explicitly accepted nor rejected the appellants testimony.
    At para. 22 of his reasons he stated only that he accepted defence counsels
    submission that the appellant testified in a straightforward manner, that he
    was not evasive and did not exaggerate, embellish or colour his evidence, and
    that he withstood cross-examination without a blemish. The trial judge noted
    that there was no corroboration of the allegations, but he recognized that none
    was required.

[36]

The
    trial judge acknowledged that the complainant gave some contradictory evidence.
    He referred specifically to the discrepancy in her description of the white
    stuff, which she described as being both warm and cold. The trial judge also
    considered the complainants conflicting evidence as to whether she had ever
    seen a bird on television or in a movie
. He
    found that the evidence that she had seen the accuseds penis while he was
    naked in bed with D.D. or while he was in the shower, and that her description
    of white stuff came from the imagination of a child having watched the movie
    Seed of Chucky, did not rise above the level of a possibility
.

[37]

The
trial judge found that the complainants initial
    disclosure of the sexual abuse was unprompted and spontaneous. The complainant
    told D.D. that she had seen the appellants bird and that he had chased her
    around the apartment and tried to put it in her mouth. The trial judge found
    that this disclosure prompted D.D. to begin recording what the complainant was
    saying and demonstrating on her cell phone, albeit that the precise timing of
    when the cell phone recording began was unclear.

[38]

The
    trial judge noted that the complainant gave a detailed description of the
    sexual abuse, demonstrating what had occurred using her stuffed toys. She said
    that she remained on the floor, fully clothed, while the appellant lay on the
    bed. She stated that he did not touch her. She described the ejaculation as
    mouse drops that she washed from her hands with soap.
She
demonstrated the act of male masturbation with hand gestures. She
    clarified to her mother that the volume of white stuff that came from the
    accused was less in volume than the stuffed poodle that she had used to
    demonstrate. She provided a detailed description of a penis.

[39]

The
    trial judge found that these pieces of evidence were genuine and truthful and accepted
    the entirety of her evidence. He added that the complainant had enjoyed the
    appellants company and got along with him like good friends. Given such a
    relationship, it was difficult to accept that the complainant would manufacture
    a story without substance.

[40]

The
    trial judge concluded, at para. 28: On the basis of the very particulars of
    the evidence [the complainant] gave as I just recounted and considering all of
    the evidence, including the denial by the accused, I am satisfied beyond a
    reasonable doubt the Crown has proved its case.

ANALYSIS

(1)

The first ground
    of appeal

Did the trial judge fail to
    resolve a critical inconsistency and fail to explain why he accepted the
    complainants evidence and rejected the appellants?

[41]

The appellant submits that the
    hearsay statement made prior to the video recording made by D.D.  that the
    appellant had tried to put his bird into the complainants mouth and chased
    her around the apartment  was a very different allegation than the one the
    appellant was convicted of committing. The appellant characterizes this as a
    critical inconsistency that the trial judge neither acknowledged nor resolved
    when assessing the complainants credibility. The appellant submits that the
    trial judge does not appear to have harboured any doubt that this statement
    was made, and notes that the allegation that the appellant attempted to put
    his penis into the complainants mouth was entirely unsubstantiated; it was
    denied at trial by the complainant as well as the appellant. In these
    circumstances, it was essential for the trial judge to determine how one
    statement could bear the entire weight of the conviction while the other was,
    it appears, false.

[42]

The Crown takes the position that the
    inconsistency was not significant in the context of the trial. The evidence did
    not come from the complainant herself; it came from the complainants mother,
    D.D., and defence counsel did not cross-examine her on the statement. Moreover,
    the statement was never adopted by the complainant. On the contrary, in
    cross-examination she testified that she did not make the statement to D.D. and
    that the incident did not happen. The inconsistency was not mentioned by either
    counsel as a factual issue that had to be resolved, and it was not necessary
    for the trial judge to resolve it. The appellants convictions all related to
    the masturbation incidents, not to attempted oral sex, and it is reasonable to
    infer that the trial judge did not find that attempted oral sex had occurred,
    and that the issue did not have to be explicitly taken into account in
    assessing the complainants credibility, because it was no longer in play after
    her cross-examination.

[43]

The
    principles that govern this ground of appeal are not in doubt.

[44]

First,
    the trial judges credibility findings are owed significant deference on
    appeal. They should not be interfered with unless
they cannot be supported on any
reasonable view of the evidence:
R.
    v. P.(R.)
,
2012

SCC

22, [2012] 1 S.C.R. 746
; and
R. v. Burke
, [1996] 1 S.C.R. 474, at para.
    7.

[45]

Second,
    significant testimonial inconsistencies should be addressed because, as the
    Supreme Court noted in
R. v. Gagnon
,
    2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know
    why the trial judge is left with no reasonable doubt. However, a trial judge
    is not required to refer to or resolve every inconsistency raised by the
    defence in the course of his or her reasons:
R. v. R.(C.)
, 2010 ONCA
    176, 260 O.A.C. 52,
at para. 48.

[46]

Third,
    an appellate court should not interfere with a trial judges findings of
    credibility if the core of the complainants allegations against an appellant
    remain largely intact on a review of the entirety of the evidence:
R. v.
    Roy
, 2017 ONCA 30, at para. 14;
R. v. Barua
,
2014 ONCA 34,
    315 O.A.C. 83, at paras. 7-8; and
R. v. Marleau

(2005), 197
    O.A.C. 29 (C.A.), at para. 7.

[47]

Applying
    these principles, I would reject this ground of appeal.

[48]

A reading of the record as a whole
    demonstrates that the inconsistency was not a live issue at trial. Not only did
    the

complainant never adopt the oral sex allegation attributed to her by
    D.D., she rejected it clearly when it was put to her. She testified that the
    appellant never chased her or attempted to put his bird in her mouth, and
    that she never told D.D. that he had done so. D.D. was not cross-examined on
    the statement.

[49]

Neither the Crown nor defence
    counsel submitted that the oral sex allegation was an inconsistency that needed
    to be resolved by the trial judge. This is not surprising, as the oral sex
    allegation statement was unrelated to the allegations of masturbation that
    formed the basis for the charges against the appellant.

[50]

At
    trial, defence counsel addressed the oral sex allegation only briefly in the
    course of his closing submissions as follows:

As well, and I appreciate children are young and their memories
    change, there are other discrepancies between what [the complainant] testified
    to in what she told her mother and I  I'm sure your honour has noted those
    inconsistencies about saying, No, he never chased me. No, he never tried to
    stick it in my mouth contrary to what she's alleged to have told her mother at
    the first disclosure

[51]

Plainly,
    the oral sex allegation inconsistency identified by defence counsel was simply
    one issue amongst others. It was not a significant inconsistency that had to be
    resolved by the trial judge in making his credibility findings.
Defence counsel did not take the position that it was
    the sort of major inconsistency that appeal counsel now submits it to be.

[52]

When the trial judges reasons are read as a whole,
it is reasonable to infer that although he accepted
    that the complainant made the statement to D.D., he did not find that attempted
    oral sex occurred. His
reference to the oral sex allegation at the
    outset of his decision demonstrates that he used
it
    as narrative of
how the complainants
allegations
    against the appellant
came to light and the spontaneous nature of her
    disclosure to D.D.
He accepted that the
    complainant spontaneously blurted out the statement to her mother that last
    year she had seen [the appellants] bird, that he tried to put it in her
    mouth, and that he [then] chased her around the apartment.

[53]

This was a credibility case, and
    at the end of the day the core of the complainants allegations were unaffected
    by the inconsistency. They remained consistent throughout. The complainant
    provided graphic details as to how the assaults took place. The trial judge
    reviewed the evidence, cognizant of the shortcomings of the child complainants
    evidence, and ultimately decided to accept her evidence in its entirety.

[54]

The trial judges analysis
    reflects a careful and sensitive approach to the evidence as a whole and I see
    no error that would allow this court to intervene.

[55]

Although the trial judges reasons
    are relatively brief, they are responsive to the live issues in the case and
    the parties key arguments:
R. v. Walker
, 2008 SCC 34
,
[2008] 2 S.C.R. 245,
at
    para. 20. The trial judge properly instructed himself as to the law, and in
    particular the requirements set out in
W.D.
The appellant was not entitled to an acquittal simply
    because his evidence did not raise any obvious problems. The trial judge did
    not accept the appellants evidence, but nor did he reject it simply because he
    accepted the complainants evidence.

[56]

The trial judge was entitled to
    reject the appellants evidence based on a considered and reasoned acceptance
    beyond a reasonable doubt of the truth of the conflicting credible evidence:
R.
    v. J.J.R.D.

(2006), 218 O.A.C. 37 (C.A.), at para. 53. That is
    what occurred in this case.

(2)



The second ground of appeal

Did the trial judge fail to consider innocent
    explanations for the complainants knowledge of a penis and sexual acts in
    determining whether a reasonable doubt arose?

[57]

The appellant submits that there
    were alternative explanations for the complainants knowledge of the appearance
    of a male penis and the act of masturbation. These included the evidence that
    she thought she saw a bird in a movie; that the white fluid in the Seed of
    Chucky movie looked like that which came from the appellant; D.D.s evidence
    that the complainant saw the penises of her father and younger cousin and
    compared them to the appellants; and the appellants evidence that the
    complainant could have seen his erect penis when she walked in on him and D.D.
    having sex.

[58]

The appellant argues that, in
    dismissing the alternative explanations for the complainants knowledge, the
    trial judge in effect reversed the burden of proof. The appellant accepts that
    the trial judge properly characterized the alternative explanations as
    possibilities, but submits that he wrongly disregarded them because they were
    not proven to be true.

[59]

There
    is no merit to this ground of appeal.

[60]

The Crown argued, based on the
    Supreme Courts decision in
Khan
,
that the complainants
    knowledge of sexual acts and her ability to demonstrate the act of masturbation
     knowledge she could not be expected to have otherwise  was relevant to the
    credibility and reliability of her testimony.

[61]

It was not incumbent on the
    appellant to explain how the complainant acquired the sexual knowledge she had,
    or to prove that the alternative explanations for her knowledge were true, and
    the trial judge did not suggest otherwise. He considered the alternative
    explanations proffered by the appellant for the complainants knowledge of the
    appearance of a penis and the act of masturbation, and concluded that the
    evidence on those issues did not rise above the level of a possibility. In
    other words, the evidence did not raise a reasonable doubt.

[62]

The trial judge did not set out
    his findings on every aspect of the evidence in detail, but he was not required
    to. A mere possibility that alternative explanations are true does not raise a
    reasonable doubt. Reasonable doubt depends upon reasonable possibility, not
    conjecture:
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000, at paras. 36-43.

CONCLUSION

[63]

The
    appellant has shown no basis that would allow this court to interfere with the
    trial judges decision.

[64]

I
    would dismiss the appeal.                 Grant Huscroft J.A.

I agree E.E.
    Gillese J.A.


Trotter J.A. (dissenting):

[65]

I
    have had the benefit of reading the carefully prepared reasons of my colleague,
    Huscroft J.A. I agree with how he would dispose of the second ground of appeal.
    However, I respectfully disagree with his conclusion on the first, concerning
    the complainants prior inconsistent statement.

[66]

I
    believe the inconsistency is significant. Given the trial judges very positive
    findings about the appellants presentation as a witness, his failure to
    address the complainants inconsistent statement constitutes a reversible error
    that requires a new trial.

[67]

My
    colleague has recounted the underlying facts comprehensively. I need not repeat
    them. However, I would characterize certain trial events somewhat differently.

[68]

The
    inconsistent statement at issue was the complainants very first disclosure of
    her allegations. But it was never repeated  not in the iPhone video; not in
    her other statements to D.D.; not to the police; and not at trial. In her trial
    testimony, the complainant denied that the appellant chased her around the
    apartment and tried to put his penis in her mouth. Moreover, she even denied
    making the statement to D.D.

[69]

After
    the complainant testified, the Crown (not Ms. Young) applied to have this
    statement (and others) admitted for its truth, based on
R. v. Khan
,
    [1990] 2 S.C.R. 531. The appellant resisted the application. The trial judge
    admitted the evidence on this basis, finding threshold reliability had been
    established.

[70]

On
    appeal, the Crown attempts to downplay the significance of the inconsistent
    statement. Ms. Young emphasizes that the evidence did not come from the
    complainant herself; instead, it arose during D.D.s testimony. She also
    observes that the complainant never adopted this statement in
    cross-examination, and in fact denied that the incident happened. Consequently,
    the Crown submits that the inconsistency cannot fairly be laid at the
    complainants feet, particularly since it was not explored with her motherin
    cross-examination. I disagree.

[71]

There
    can be no doubt that the complainants initial statement to D.D. was a prior
    inconsistent statement. It was proved through D.D. that, on an earlier
    occasion, the complainant said something different from her in-court testimony.
    Far from suggesting that the complainant did not make this statement, the Crown
    succeeded in having it admitted for its truth.

[72]

The
    potential impact on credibility of such a statement is clear, even when the
    witness denies making it: see
R. v. Mannion
, [1986] 2 S.C.R. 272, at
    pp. 277-278. In

R. v. M. (A.)
, 2014 ONCA 769, 123 O.R. (2d)
    536, this court allowed an appeal from convictions for sexual offences. The
    appeal focused on the adequacy of the trial judges reasons in light of
    frailties in the evidence, including prior inconsistent statements of the
    complainant. As the court said, at para. 12:

Fourth, one of the most valuable means of
    assessing witness credibility is to examine the consistency between what the
    witness said in the witness box and what she has said on other occasions,
    whether or not under oath
:
R. v. G. (M.)
(1994),
    93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C.
    refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.).
Inconsistencies
    may emerge in a witness' testimony at trial, or between their trial testimony
    and statements previously given.
Inconsistencies may also emerge from
    things said differently at different times,
or from omitting to refer to
    certain events at one time while referring to them on other occasions
. [Emphasis
    added.]

[73]

The complainants failure to adopt her previous
    statement, and her denial of having made it, did not mitigate its impeachment
    value, as the Crown seems to suggest. A witness need not admit to having made a
    previous statement before it can be used for impeachment purposes.

[74]

Although the complainant did not adopt her previous
    statement, it nevertheless became admissible for its truth when the Crown
    succeeded on its
Khan
application. The Crown
    vouched for its reliability at that stage, and again during closing
    submissions. It cannot now retreat from this position because the statement
    turned out to have impeachment value as a prior inconsistent statement. This
    should have been obvious when the
Khan

application
    was made.

[75]

Moreover, the Crowns criticism of defence
    counsels (not Mr. Krongold) failure to explore the issue in his
    cross-examination of D.D. is misplaced. Defence counsel had D.D. confirm that
    the complainant repeated the statement a couple of times. It was entirely
    appropriate for counsel to leave well enough alone and rely on the
    inconsistency; he was not obliged to assist in resolving it.

[76]

I respectfully disagree with my colleagues
    conclusion at para. 48, above, that the inconsistency was not a live issue at
    trial. The appellant testified about the statement. He acknowledged playfully
    chasing the complainant around the apartment all the time, but denied trying
    to put his penis in her mouth. Moreover, defence counsel referred to this
    inconsistency in his closing submissions (see the excerpt in para. 50, above).
    While it may not have been defence counsels primary focus, the issue was
    squarely in play.

[77]

I accept that trial judges are not required to
    address every inconsistency that arises on the record. However, this leeway has
    limits. I return to
M. (A.)
,
in which the
    court addressed this issue, at para. 14:

A trial judge giving reasons for judgment is
    neither under the obligation to review and resolve every inconsistency in a
    witness' evidence, nor respond to every argument advanced by counsel:
R.
    v. M. (R.E.)
,
2008 SCC 51, [2008] 3 S.C.R.
    3 (S.C.C.), at para. 64.
That said, a trial judge should address and
    explain how she or he has resolved major inconsistencies in the evidence of
    material witnesses
:
G. (M.)
,
at p.
    356;
R. c. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788 (S.C.C.), at para. 31. [Emphasis added.]

[78]

In
R. v. H. (D.)
, 2016 ONCA 569,
338
    C.C.C. (3d) 251, Feldman J.A. quoted part of the passage directly above and
    said, at para. 35
:

As the Supreme Court stated in
R.
    v. Dinardo
, at paras. 26-27, the failure to articulate
    how credibility concerns are resolved, particularly in the face of significant
    inconsistencies in a complainant's testimony, may constitute reversible error,
    as an accused is entitled to know why the trial judge is left with no
    reasonable doubt.

See also
R. v. A.N.
, 2017 ONCA 647, at para.
    16.

[79]

In
    his reasons, the trial judge said that the complainant gave some contradictory
    evidence. However, he failed to specifically evaluate the prior inconsistent
    statement, one that he found provisionally reliable when admitting it on the
    basis of
Khan
.

[80]

The
    trial judge placed great emphasis on the fact that, given the positive
    relationship that the complainant admitted to having with the appellant, it was
    unlikely that she would fabricate the allegations against him. However, he
    never explicitly rejected the appellants evidence. I repeat the trial judges
    general appraisal of the appellants evidence:

I accept the submission of [defence counsel] that the accused
    testified in a straight forward manner, was not evasive and did not exaggerate,
    embellish or colour his evidence.
He withstood cross-examination without a
    blemish.
Essentially his position is that the incidents related by [the
    complainant] with which he is charged did not occur. There is no evidence to
    corroborate the allegation, but of course, none is required. [Emphasis added.]

[81]

Because
    the complainants inconsistent statement was so at odds with the rest of her
    evidence, it could not be ignored. After all, the statement was admitted for
    its truth. In these circumstances, and as a witness who withstood
    cross-examination without a blemish, the appellant was entitled to know why
    the complainants evidence was capable of establishing his guilt beyond a
    reasonable doubt.

[82]

I
    would allow the appeal and order a new trial.

Released:

GH

SEP 14 2017

G.T.
    Trotter J.A.


