



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. C.F., 2017 ONCA 480

DATE: 20170612

DOCKET: C59098

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.F.

Appellant

James Lockyer and Philip Campbell for the appellant

Philippe Cowle for the respondent

Heard: December 1, 2016

On appeal from the convictions entered on February 20,
    2014 by Justice Gisele M. Miller of the Superior Court of Justice, sitting
    without a jury.

Huscroft J.A.:

Overview

[1]

The appellant has twice been tried and convicted
    of sexual offences involving two teenaged girls from the Netherlands who stayed
    at his family home for several weeks, one in 1997 and the other in 2001. The
    appellants convictions at his first trial were overturned by this court on
    appeal and a new trial was ordered: 2013 ONCA 62.

[2]

The principal issue on this appeal is whether
    the trial judge erred in her treatment of the evidence from the appellants
    first trial  evidence proffered by the appellant in an attempt to undermine
    the credibility and reliability of one of the complainants. The appellant
    brings a fresh evidence application in support of this argument, seeking to
    have transcripts of the evidence of one of the witnesses from the first trial
    admitted.

[3]

The appellant further argues that the trial
    judge misapprehended evidence and assessed the evidence of the complainants and
    the appellant with uneven scrutiny.

[4]

For the reasons that follow, I would not admit
    the fresh evidence and would dismiss the appeal.

Background

[5]

The complainants are the daughters of J.M., a
    former friend and business associate of the appellant from the Netherlands.
    F.M., then 14 years of age, visited Canada and stayed with the appellant and
    his family for several weeks during the summer of 1997. The appellant, then
    aged 35, was married to his first wife, K.F., with whom he had two sons, ages two
    and four. J.M.s other daughter, M.M., stayed with the appellant and his family
    for several weeks during the summer of 2001, when she was 15 years old.

[6]

In 2006, F.M. and M.M. told each other that they
    had each been sexually involved with the appellant during their visits. They
    gave statements to the Dutch police in February 2007 and video-recorded
    statements to the Halton Regional police in September 2008, following which the
    appellant was charged.

[7]

The appellant was initially charged with four
    counts of sexual assault and six counts of sexual exploitation. He was
    acquitted of the four sexual assault counts on a directed verdict. A jury
    convicted him of four counts of sexual exploitation but acquitted him of the
    two other exploitation charges.

[8]

This court allowed the appellants conviction appeal
    with the Crowns consent, quashed his convictions, and ordered a new trial. The
    acquittals from the appellants first trial stood.

[9]

The appellant was retried on four counts of
    sexual exploitation, two against each complainant. The trial judge found the
    appellant guilty on all four counts.

THE EVIDENCE AT THE SECOND TRIAL

(1)

F.M.

[10]

F.M. testified that she was treated as a mature
    young woman by the appellant and K.F. She recounted discussions with K.F. and
    the appellant concerning sexuality that included the appellants sexual
    prowess, his sex life with his wife, his penis, orgasms, and thong underwear. She
    testified that the appellant bought thong underwear for her.

[11]

F.M. testified that a series of sexual acts took
    place with the appellant during her visit, often while K.F. and/or the
    appellants children were nearby. The acts began shortly after she arrived.
    F.M. testified that the appellant gave her a massage and asked her to remove
    her shirt and bra. F.M. complied and the appellant massaged her breasts. On
    another occasion, F.M. said that she saw the appellant naked in his bedroom,
    showing his genitalia and acting flirtatiously.

[12]

F.M. testified that she performed fellatio on
    the appellant on a regular basis. She described several incidents, including
    fellating the appellant after she awoke to find his penis in her face; being
    summoned on the house intercom to come to the basement by the appellant and
    performing fellatio at his request; and fellating the appellant as he drove to
    the family cottage, while his sons were in the back seat of the car. At the
    cottage, she described skinny-dipping with the appellant and said that he
    inserted his fingers into and licked her vagina. She also performed fellatio on
    the appellant in the cottage kitchen.

[13]

F.M. testified that the appellant never told her
    not to tell anyone and never forced her to do anything. On the contrary, she
    testified that she was comfortable with the appellant and was attracted to him,
    and that she was sometimes proactive in initiating the sexual activity. She did
    not think it was wrong, apart from the fact that the appellant was married.

[14]

F.M. testified that for a long time she never
    discussed what had occurred with anyone, except for a soccer training friend on
    her return to the Netherlands, and then not in detail. Several years later,
    when her sister M.M. was contemplating visiting Canada and staying at the
    appellants home, F.M. said that she cautioned her about going because things
    had happened between her and the appellant. However, she did not provide any
    details about what had happened. She warned her sister not to let the appellant
    give her a massage.

[15]

F.M. testified that she recalled having a drink
    with the appellant some years later, when he visited her family in the
    Netherlands, and that she told him she could ruin his life.

(2)

M.M.

[16]

M.M. gave a similar description of F.M.s
    warning. She testified that F.M. told her she should not go to Canada because sexual
    things had happened with the appellant, and she was concerned the same things
    would happen to her. She said that F.M. did not describe in detail what had
    happened, but told her not to allow the appellant to give her a massage.

[17]

M.M. decided to go to Canada despite F.M.s
    warning, and stayed at the appellants home for several weeks during the summer
    of 2001. She testified that the appellant massaged her and touched her breasts.
    She found the encounter a little bit interesting and said that the appellant
    was very nice to her. On another occasion, he kissed her with his tongue in her
    mouth, performed cunnilingus and licked her anus. She then performed fellatio
    on the appellant. M.M. said that the appellant made her feel special and
    mature.

[18]

M.M. testified that the appellant never told her
    not to tell anyone and that she did not discuss her sexual encounters with the
    appellant with K.F. She said that the appellant drove her to upstate New York
    to allow her to see F.M., who was about to commence studies in the United
    States, and although F.M. asked her if anything had happened, she told her it
    had not.

(3)

The mouse incident

[19]

The mouse incident refers to an incident of
    sexual touching alleged by M.M. to have occurred at the appellants cottage. At
    the first trial, the appellant was acquitted of the sexual exploitation charge that
    arose out of this allegation. The mouse incident was not related to the sexual
    exploitation charges the appellant was facing at the second trial.

[20]

Nevertheless, defence counsel sought permission
    to cross-examine M.M. and call evidence to rebut the allegation in order to
    undermine her credibility and reliability concerning the sexual exploitation
    charges at the second trial.

[21]

Crown counsel initially objected to defence
    counsels cross-examination request, but later withdrew his objection, provided
    that he was permitted to re-examine M.M. without complaint that he was
    splitting his case. The Crown objected outright to defence counsels request to
    call contradictory evidence on the basis that it violated the collateral fact
    rule.

[22]

The trial judge allowed the defence request. She
    reasoned that neither issue estoppel nor the collateral fact rule prevented the
    appellant from cross-examining M.M. on the mouse incident and calling
    contradictory evidence. With respect to issue estoppel, the trial judge noted
    that the mouse incident had been litigated at the appellants first trial.
    However, contradicting M.M. would accord with, rather than undermine, the
    jurys verdict. The rationale underlying the doctrine of issue estoppel 
    fairness to the accused, judicial finality, and coherence of the criminal
    process  would not be undermined by allowing the appellant to contradict M.M.

[23]

The trial judge then concluded that
    contradicting M.M. on the mouse incident would not run afoul of the collateral
    fact rule. She reasoned that the probative value of the proposed evidence was
    significant: it was proffered to show M.M. made a false allegation against the
    same appellant around the same time as the allegations before the court. She
    found the potential prejudice contemplated by the collateral fact rule 
    prolonged litigation and distraction  to be low.

[24]

The trial judge thus allowed defence counsel to
    cross-examine M.M. on the mouse incident and to call evidence to rebut the
    allegation. In addition to the appellant, the defence called two witnesses to
    contradict M.M.s version of events: V.B. and D.M  both guests at the appellants
    cottage that night. The Crown was permitted to re-examine M.M. on issues raised
    in cross-examination, and to call rebuttal evidence before closing its case.
    The Crown called A.H., another guest staying at the appellants cottage when
    the mouse incident occurred.

[25]

M.M. testified that she was sleeping on the
    floor at the appellants family cottage. Following a commotion caused by a
    mouse, she was invited to share a bed with the appellant and K.F. in the master
    bedroom. She testified that she did so and that the appellant touched her
    vagina and put at least one of his fingers inside her. M.M testified that she
    awoke next morning in the appellants bed.

[26]

A.H., who worked with K.F., was a guest at the
    cottage at the time. She testified that M.M. was upset following the mouse
    incident and that K.F. had invited M.M. to sleep in the master bedroom with her
    and the appellant, or in their bed. A.H. said that M.M. went into the master
    bedroom. She did not recall seeing M.M. the next day until everyone was up and
    about.

[27]

The testimony of M.M. and A.H. was contradicted
    by two other guests at the cottage, as well as the appellant.

[28]

V.B., who also worked with K.F., testified that
    she saw the appellant and K.F. come out of their bedroom following the mouse
    incident, but did not hear her offer to let M.M. sleep in the master bedroom. Nor
    did she see M.M. go into their bedroom. V.B. said that M.M. slept on the couch
    in the living room and was sleeping on the couch when she awoke the next
    morning.
[1]


[29]

D.M., who worked for the appellant and K.F. as a
    nanny, testified that she was sleeping on the floor alongside M.M. when the
    mouse ran over them. She said that she did not hear K.F. offer to let M.M.
    sleep in her bed with the appellant, nor did she see M.M. go into the master bedroom.
    She testified that she saw M.M. sleeping on the couch the next morning as she
    got breakfast for the appellants children.

(4)

The appellant

[30]

The appellant categorically denied that any
    sexual acts had taken place with either complainant.

[31]

He testified that K.F. discussed sexuality with
    F.M. but denied that he participated in the discussions. He denied that he gave
    F.M. thong underwear and that he had ever gone skinny-dipping at the cottage,
    and with F.M. in particular. He testified that the area in question was covered
    in sharp zebra mussels that made it unsuitable for swimming.

[32]

In answer to the question whether there was an
    intercom system in the basement of his home, the appellant testified not that
    I recall. The appellant acknowledged that he met with one of the complainants
    in Holland while on a business trip but denied that either complainant told him
    she could ruin his life.

[33]

The appellant testified he agreed to drive M.M.
    to New York so that she could see her sister F.M. after M.M. missed her return
    flight to the Netherlands.

[34]

As to the mouse incident, the appellant
    testified that K.F. did not suggest that M.M. sleep in their bed and that she
    did not do so. His double bed at the cottage would have been very crowded with
    three people in it. The appellant testified that M.M. was asleep on the couch
    the next morning when he awoke.

The trial judges decision

[35]

Credibility was the central issue at trial. The
    trial judge acknowledged the need to apply the approach set out by the Supreme
    Court in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.
She
    emphasized that she was not simply choosing between evidence given by the other
    witnesses and the appellants testimony, and that the onus was on the Crown to
    establish guilt beyond a reasonable doubt. She noted that acceptance of compelling
    evidence of a complainant may provide a reasonable basis for rejecting an
    accuseds denial of allegations:
R. v. J.J.R.D.
, 215 C.C.C.
    (3d) 252, leave to appeal refused, [2007] S.C.C.A. No. 69
.

[36]

The trial judge dealt first with the mouse
    incident.

[37]

She found that the guests at the cottage, A.H.,
    V.B., and D.M., were all honestly attempting to tell the truth, and all were
    credible. The trial judge described K.F. as an obvious missing witness, as
    she could confirm or deny whether M.M. had spent the night in her bed, and said
    the decision not to call her was a factor to be considered.

[38]

The trial judge accepted the evidence of A.H.
    and M.M. that K.F. invited M.M. to sleep in the appellants bedroom following
    the mouse incident, and that M.M. and K.F. entered the bedroom together. She
    concluded that this finding neither compromised nor enhanced M.M.s credibility
    on the exploitation allegations.

[39]

The trial judge recognized the need to consider
    the exploitation allegations separately. She acknowledged that the complainants
    had discussed their respective experiences with the appellant with each other,
    and it was possible that this may have affected the reliability of their
    testimony.

[40]

The trial judge discussed the appellants
    evidence in detail. She noted his categorical denial of the allegations and his
    assistance in producing records that helped establish the relevant timelines
    during the complainants visits. She acknowledged that the appellant would have
    had to establish a relationship of trust with the complainants within a
    relatively short time in order to engage them in the sexual activity alleged.

[41]

However, the trial judge stated that she had
    difficulty with the appellants testimony in several respects. She described
    the appellant as frequently confrontational  and on occasion evasive. She
    found that his response to cross-examination was disproportional, given that
    the Crowns questions were posed with courtesy and respect.

[42]

The trial judge found that the appellant
    exaggerated the extent to which the nanny, D.M., had stayed overnight during
    the summers of 1997 and 2001 in an attempt to minimize the opportunity he would
    have had to commit the offences alleged.

[43]

The trial judge found that the appellants
    testimony that he did not believe the intercom system went throughout the
    house was contradicted by D.M., and was an attempt to discredit F.M.s
    testimony that the appellant had summoned her to the basement using the
    intercom system.

[44]

The trial judge acknowledged the frailties in
    F.M.s testimony, including its vagueness. She considered that it was
    understandable given the passage of time, but found that it did impact the
    reliability of her testimony. She noted, however, that F.M.s credibility was
    enhanced by her refusal to embroider her account, as well as her insistence
    that the appellant had not forced her to do anything and that she had initiated
    much of the sexual contact.

[45]

The trial judge acknowledged the risk the
    appellant ran in bringing the complainants together in New York, but considered
    that it would have been a risk to the appellants career and friendship with
    J.M. had he refused to make the trip. She noted that F.M. did not do all that
    she could have to dissuade M.M. from coming to Canada to stay with the
    appellant, but considered that she was reluctant to reveal what had occurred
    between her and the appellant, given M.M.s determination to make the trip. The
    trial judge rejected as speculative the possibility that F.M. and M.M. had
    influenced each others memories.

[46]

The trial judge accepted F.M.s testimony as to
    the sexual acts she described relating to counts 1 (fellatio) and 2
    (cunnilingus) of the indictment and rejected the appellants evidence where it
    conflicted. She did not believe the appellants evidence that there was no
    sexual contact between him and F.M., and found that his evidence did not raise
    a reasonable doubt.

[47]

The trial judge similarly reviewed the frailties
    in M.M.s evidence, including vagueness at points, which affected its reliability.
    As with F.M., M.M.s, credibility was enhanced by her refusal to embellish her
    account, despite being invited to do so by defence counsel. Concerning the
    suggestion that M.M.s memory had been influenced by F.M., the trial judge
    noted that the sexual acts she alleged were different from those alleged by
    F.M., and involved the appellant French kissing her and licking her anus.

[48]

The trial judge accepted M.M.s testimony as to
    the sexual acts alleged in count 3 (touching with hands) and count 4 (touching
    with mouth), and rejected the appellants evidence where it conflicted. She did
    not believe the appellants evidence that there was no sexual contact between
    him and M.M. and found that his evidence did not raise a reasonable doubt.

Issues on appeal

[49]

The appellant submits that the trial judge
    erred:

1.

in dealing with the evidence concerning the mouse incident;

2.

in rejecting the appellants testimony based on misapprehensions of
    the appellants evidence; and

3.

in further misapprehending material evidence; and

4.

in applying different standards of scrutiny to Crown and defence
    evidence.

[50]

The appellant brings a fresh evidence
    application concerning the mouse incident. I deal with each of these issues in
    turn.

(1)

The
    mouse incident

The fresh evidence application

[51]

The appellant sought leave to have V.B.s
    evidence from the first trial admitted as fresh evidence. V.B.s testimony from
    the second trial was not transcribed because it was not recorded, presumably
    the result of a mistake or malfunction. However, V.B.s testimony from the
    second trial was summarized in the trial judges decision.

[52]

I would reject the fresh evidence application.

[53]

The test for the admission of fresh evidence
    from
Palmer v. The Queen
, [1980] 1 S.C.R. 759,
    at p. 775 is well known. Fresh evidence:

1.

should generally not be admitted if, by due
    diligence, it could have been adduced at trial;

2.

must be relevant, in that it bears upon a
    decisive or potentially decisive issue in the trial;

3.

must be credible, in the sense that it is
    reasonably capable of belief; and

4.

must be such that if believed, and when taken
    with the other evidence at trial, it could reasonably be expected to have
    affected the result.

[54]

The Crown concedes that the first and third
Palmer

requirements

are
    met, but submits that the evidence is not relevant and could not affect the
    result in this case. I agree. The appellant did not suggest that the trial
    judges summary of V.B.s evidence was in any way defective. On the contrary,
    counsel for the appellant acknowledged at the hearing that the fresh evidence
    was helpful, rather than critical, and that the trial judges summary of V.B.s
    evidence did not conflict with her testimony from the first trial. The
    transcript was simply more complete.

The alleged
Morin
error

[55]

In his factum, the appellant submits that the
    trial judge erred in requiring the defence to prove that the mouse incident was
    demonstrably false in order to challenge the complainants credibility. Once
    the evidence concerning the mouse incident was admitted, it was part of the
    evidence for all purposes and should have been considered in determining
    whether there was reasonable doubt on the exploitation charges before the
    court. Instead, the trial judge applied the reasonable doubt test to individual
    pieces of evidence, rather than the evidence as a whole. At the hearing of the
    appeal, counsel for the appellant described this as a classic
Morin
error: see
R. v. Morin
, [1992] 3 S.C.R. 286; and
R.
    v. J.M.H.
, 2011 SCC 45,
    [2011] 3 S.C.R. 197, at para. 31.

[56]

I would reject this submission.

[57]

Although the trial judge erred in restricting
    her consideration of the mouse incident evidence by applying the demonstrably
    false standard, the error was harmless. Because the trial judge accepted M.M.
    and A.H.s evidence that M.M. was invited to sleep in the appellants bedroom,
    the mouse incident evidence could only have positively affected M.M.s
    credibility while undermining the appellants. Thus, the separate consideration
    of the mouse incident did not harm the appellant and may have worked to his advantage.

i.

The collateral fact rule

[58]

The collateral fact rule prohibits calling evidence
    solely to contradict a witness on a collateral fact. The rule does not impact
    the scope of cross-examination, but rather limits what contradictory evidence
    can be called to refute a witnesss answer. The rule seeks to preserve trial
    efficiency and avoid confusion and distraction by preventing the litigation of issues
    that have only marginal relevance. See generally,
David Watt,
Watts
    Manual of Criminal Evidence
, (Toronto: Thompson Reuters Canada, 2016), at
    p. 316.

[59]

The mouse incident involved collateral facts, as
    the rule is traditionally understood. Whether the appellants sexual encounter
    with M.M. at the cottage occurred was neither material nor relevant to the
    material facts in issue concerning the sexual exploitation charged in the
    indictment. It was relevant only to M.M.s credibility. Thus, although defence
    counsel could cross-examine M.M. about the mouse incident, in the normal course
    the collateral fact rule precluded the calling of rebuttal evidence to
    contradict her version of events.

[60]

Nevertheless, in the circumstances of this case, the
    trial judge did not err in admitting the rebuttal evidence. The collateral fact
    rule is not absolute. As the Supreme Court recognized in
R. v.
    R.(D.)
,
[1996] 2 S.C.R. 291, evidence that
    undermines a witnesss credibility may escape the exclusionary reach of the collateral
    fact rule if credibility is central to the case against an accused.

[61]

The three accused in
R.(D.)
were charged with sexually
    assaulting D.s three young children. They sought to undermine the
    complainants credibility by cross-examining their therapist on her interview
    techniques to prove that the children had been coached or manipulated. The
    majority of the Supreme Court held, at p. 313, that the accused was entitled to
    contradict the complainants:

The credibility of the children was at the heart of the case
    against the appellantsAny evidence that might have cast doubt on the
    children's credibility, or that might show that the children had been subjected
    to coaching and manipulation, was evidence that would have been crucial to the
    appellants' case.

[62]

The sexual touching in this case was alleged by
    the same complainant against the same accused during the same timeframe as the
    exploitation counts in the indictment, albeit that they occurred at a different
    location  the family cottage rather than the family home. If the alleged touching
    did not occur, M.M.s credibility and reliability  central to the case  would
    be compromised significantly. In these circumstances, it was open to the trial
    judge to conclude that the probative value of the evidence outweighed its
    prejudicial effect and that rebuttal evidence should be permitted.

[63]

This court has twice refused to permit an
    accused to cross-examine a complainant on prior sexual assault allegations and
    then call the alleged perpetrators to contradict the complainant, on the basis
    that the evidence would offend the collateral fact rule:
R. v. Riley
(1992), 11 O.R. (3d) 151, leave to appeal refused, [1993] 2 S.C.R. x; and
R.
    v. B.(A.R.)
(1998), 41 O.R. (3d) 361, affd 2000 SCC 30, [2000] 1 S.C.R.
    781.

[64]

However, the concerns underpinning the decisions in
Riley
and
B.(A.R.)
do not arise in this case. The prior sexual assault allegations in those cases
    were made against third parties, and the court was rightly concerned about
    confusing the process by introducing a litany of marginally relevant issues for
    the trier of fact to decide. As the majority in
B.(A.R.)
noted, at p. 366:

[T]he tactic of the defence is directed to creating confusion
    by having the jury consider not one criminal case but four or five in the hope
    that by discrediting at least one of her allegations of sexual abuse, he can
    raise a reasonable doubt as to the Crown's case on the charges on which it
    elected to proceed.

In other words, the proposed evidence would cause the
    very mischief the collateral fact rule is supposed to prevent.

[65]

The mouse incident evidence was not aimed at creating confusion. It
    was limited to a specific sexual allegation made by one of the complainants against
    the accused. It did not unduly lengthen or complicate the proceedings, nor did
    it introduce a sideshow of ancillary issues that had to be resolved. Finally,
    M.M. was not unfairly surprised by the cross-examination
 she
    had testified concerning
the mouse incident at the appellants first
    trial.

[66]

In my view, the evidence was properly admitted.

ii.

The demonstrably false standard

[67]

If the trial judge had simply gone on to find
    that the evidence did not undermine M.M.s credibility, there would be no basis
    for complaint. However, the trial judge stated: I cannot find that the
    evidence given by [M.M.] in respect of the mouse incident to be demonstrably
    false.

[68]

In my view, she erred in doing so.

[69]

The language of demonstrable falsehood flows
    from this courts decision in
Riley
. In refusing
    to admit evidence concerning sexual assault allegations by the complainant
    against a third party, the court stated, at p. 154:

The only legal basis of which we are aware that would justify
    the cross-examination of this complainant along the lines suggested would be in
    order to lay the foundation for a pattern of fabrication by the complainant of
    similar allegations of sexual assault against other men. This should not be
    encouraged unless the defence is in a position to establish that the
    complainant has recanted her earlier accusations or that they are demonstrably
    false.

[70]

Riley
does not establish a higher evidentiary threshold ­­­

demonstrable falsehood

that must
    be met before evidence rebutting a prior sexual assault allegation may be
    considered. Rather,
Riley
limits the scope of cross-examination on a
    prior allegation. Properly understood, this passage in
Riley
is no
    more than an iteration of the basic evidentiary principle that only relevant
    evidence is admissible: see e.g.
R. v. Cloutier
, [1979] 2 S.C.R. 709,
    at pp. 730-31. If the defence is unable to establish that a complainant has
    recanted a prior allegation or that it is demonstrably false, the fact the
    allegation was made loses its relevance: see
R. v. M.T.
, 2012 ONCA
    511, at paras. 45-50.

[71]

Thus, once the trial judge decided to allow
    cross-examination and to admit contradictory evidence on the mouse incident,
    the appellant did not have to establish that the allegation was demonstrably false
    before it could be considered.

[72]

However, the trial judges error was harmless.

[73]

Once the trial judge found that M.M. was invited
    to sleep in the appellants bedroom, the mouse incident could only undermine
    the
appellants
credibility and/or reliability
    and bolster M.M.s credibility and/or reliability on the sexual exploitation
    allegations that were before the court. In other words, the evidence could only
    have hurt the appellants case. As a result, the trial judges decision not to
    use the mouse incident in making her credibility findings  the so-called
    classic
Morin
error
 did not prejudice the
    appellant. If anything, the error enured to his benefit.

The failure to call K.F. as a witness

[74]

The appellant submits that the trial judge erred
    by drawing an adverse inference from the failure of the defence to call K.F. as
    a witness.

[75]

I would reject this submission.

[76]

It would have been improper to draw an inference
    of guilt from the failure of the appellant to call K.F., but that did not
    occur. Although the trial judge described K.F. as an obvious missing
    witness and said that not calling her was a factor to be considered, she also
    stated that K.F. would have been a compellable witness for either or the Crown
    or the defence. In other words, her testimony could have confirmed or
    contradicted the appellants evidence. The trial judge said nothing further
    about K.F., and there is no basis to suggest that she drew an erroneous
    inference against the appellant.

Failure to explain the rejection of the testimony of D.M.
    and V.B.

[77]

The appellant submits that the trial judge
    failed to explain her decision to reject the evidence of D.M. and V.B., and
    that she wrongly differentiated their evidence from that of A.H. on the basis
    that A.H. had a positive memory of what had occurred, whereas D.M. and V.B. had
    no recollection that K.F. had invited M.M. to sleep in the appellants bedroom
    and had not seen her go toward the bedroom.

[78]

I would reject this submission.

[79]

Testimony that a particular event occurred is
    not necessarily better evidence than testimony that it did not. But in any
    event, the positive characterization of A.H.s memory does little work in the
    context of the analysis as a whole. The trial judge accepted that A.H., D.M.,
    and V.B. all were attempting to tell the truth and that each of them was
    credible. There were necessarily inconsistencies and shortcomings in their
    evidence years after the incident. However, the trial judge was entitled to
    accept the evidence of A.H. and she did so. A.H. had a memory of the incident
    that, as the Crown submitted, would be peculiar for her to make up or imagine. Her
    memory coincided with M.M.s evidence. Contrary to the appellants submission,
    the trial judge did not err in stating that A.H. had no reason to give evidence
    favourable to M.M. A.H. testified that she had nothing but love and respect
    for the appellant. The trial judges reasons on this point were relatively
    brief, but they are not inadequate.

(2)

Misapprehensions of the evidence in rejecting
    the appellants testimony

[80]

The appellant submits that the trial judge
    misapprehended the evidence in numerous respects in the course of rejecting his
    testimony. This includes questions about:

1.

the appellants accounting records;

2.

the reason for M.M. visiting his home;

3.

whether he treated F.M. and M.M. like family;

4.

the start date of the nanny and the departure of the au pair;

5.

the purchase of a bicycle for F.M.;

6.

how often D.M. slept over;

7.

the completeness of the appellants credit card records;

8.

why the appellant retained receipts relating to the visit of M.M.;
    and

9.

whether an intercom system operated throughout the house.

[81]

In my view there is no merit to this submission.
    The alleged misapprehensions can be dealt with briefly.

[82]

The first three alleged misapprehensions invite
    the court to parse the transcript and to characterize the exchanges differently
    than the trial judge. This is not the proper function of an appellate court.
    The trial judge had the advantage of hearing the relevant testimony and
    observing the appellants demeanour. Her findings are entitled to deference,
    and there is no basis for this court to interfere with them.

[83]

Alleged misapprehensions 4, 5, and 6 concern
    issues going to the appellants opportunity to commit the offences. The trial
    judge found that the appellants answers were inaccurate and contradicted by
    other evidence that she was entitled to accept. In these circumstances, it was
    open to the trial judge to find that the appellant had attempted to minimize
    his opportunity to commit the offences.

[84]

Alleged misapprehension 7 relates to the
    appellants credit card records. Although the appellant testified that he had
    included all of the records from the relevant period, the trial judge stated
    that a review of the records showed that they did not cover the entire period
    F.M. was in Canada. The Crown properly concedes that it would have been better if
    the contradiction had been put to the appellant, but the matter was
    insignificant in the context of the reasons as a whole. Alleged misapprehension
    8, which concerns whether the appellant claimed or would not have claimed
    business expenses related to M.M.s visit, is inconsequential.

[85]

Alleged misrepresentation 9 concerns the
    intercom in the appellants home. The appellant testified that the intercom in
    the house operated between the kitchen and front door. When asked whether there
    was an intercom between the basement office and any other room in the house,
    the appellant stated: No, sir, not that I recall. Asked whether there was an
    intercom anywhere else in the house, the appellant answered: I dont believe
    so.

[86]

In contrast, D.M. testified that the intercom
    went through the whole house. She stated that it played music during the day
    and allowed users to speak from one room to another. In cross-examination, she
    acknowledged that she did not think it went to the basement but was not sure,
    because she did not spend time in the basement. She did remember it being on
    the second floor of the house, and that it was right outside the appellants
    bedroom.

[87]

The Crown describes this as an instance of the
    appellant being caught in a lie. The trial judge did not put it this way, but
    she did find that the appellants testimony, that he did not believe the
    intercom went throughout the house, was an attempt to discredit F.M.s
    testimony. This finding was open to the trial judge and there is no basis to
    impugn it.

[88]

In summary, the trial judge did not misapprehend
    the appellants evidence in any material way. The findings she made were open
    to her on the record.

(3)

Further misapprehensions of the evidence

[89]

The appellant submits that the trial judge
    misapprehended the evidence concerning the state of the area at the family
    cottage where F.M. testified that she skinny dipped with the appellant, as well
    as the evidence concerning the appellants trip to New York State with M.M.

Skinny-dipping

[90]

The appellant testified that the area in which
    the skinny-dipping was alleged to have occurred was rocky and full of sharp
    zebra mussels, and as a result was unsuitable for swimming. He produced a
    photograph of the beach that showed a group of children, including F.M.,
    wearing shoes. The appellant submits that the trial judge erred in drawing an
    adverse inference against the appellant for failing to call further evidence
    from many other potential witnesses on the conditions, and overlooked the
    photographic evidence. The appellant asserts that judicial notice can be taken
    that the submerged rocks were likely to be covered by zebra mussels.

[91]

I would reject this submission.

[92]

There was no direct evidence confirming the
    appellants testimony and the appellant did not raise the matter with F.M. when
    she testified. Further, although a photograph provided some circumstantial
    evidence that could corroborate the appellants testimony, the trial judge
    noted that none of the photographs showed the conditions of the water to be
    unusual. Finally, this was not an appropriate case for taking judicial notice;
    the swimming conditions at the appellants cottage are neither notorious nor
    capable of immediate and accurate demonstration by reference to sources of
    indisputable authority.

The trip to New York State

[93]

The appellant argues that he would not likely
    have taken M.M. to see F.M. and allowed the two sisters to spend time alone if
    he had done what either or both of them alleged. The appellant notes that the
    trial judge acknowledged that the appellant took a risk in bringing the
    complainants together, but submits that she wrongly rejected the defence
    argument by speculating about the risk the appellant would have run with the
    girls father, J.M., if he had refused to make the trip.

[94]

There is no merit to this submission.

[95]

The trial judges finding was supported by
    evidence about the appellants friendship with J.M. and the importance of
    maintaining his business relationship with him. There was risk either way, and
    in these circumstances the trial judge made a finding that was open to her.

(4)

Different standards of scrutiny

[96]

Finally, the appellant submits that the trial
    judge applied different standards of scrutiny for assessing the testimony of
    the appellant and the complainants.

[97]

This ground of appeal is often raised, but
    seldom established. That is so because, as Laskin J.A. noted in

R. v. Aird
, 2013 ONCA 447,
    307 O.A.C. 183, at para. 39, credibility findings are the province of the
    trial judge and attract a very high degree of deference on appeal; and
    appellate courts invariably view this argument with skepticism, seeing it as a
    veiled invitation to reassess the trial judges credibility determinations. In
    order to succeed, the appellant must be able to show something in the reasons
    or the record that demonstrate that different standards were applied in
    assessing the evidence:
R. v. J.H.
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[98]

The appellant submits that the trial judge was
    unfairly critical of the appellants evidence; that she did not cut the
    Appellant any slack because of the passage of time; and that she was far more
    generous and understanding when it came to assessing the complainants testimony.
    The appellant describes the trial judges treatment of the shortcomings of the
    complainants evidence as using eerily similar language.

[99]

There is no merit to this submission.

[100]

The trial judge was alive to the difficulties in the case. The
    passage of time made it difficult for the complainants to be precise about the
    events they were describing and difficult for the appellant to defend against
    their complaints. But when the record is viewed as a whole, it simply cannot be
    said that the trial judge did not approach the evidence in an evenhanded
    manner. The appellants problem is not with the way in which his evidence was
    scrutinized; it is with the fact that the trial judge did not believe his
    evidence.

[101]

The trial judge was aware of the possibility of collusion by the
    complainants. She noted key differences in their accounts: F.M. said that the
    appellant had never kissed her, while M.M. said that he did kiss her; and M.M.
    said that the appellant licked her anus while F.M. made no such claim. The
    appellants description of the language chosen by the judge in discussing the
    evidence of the complainants as eerily similar is, in my view, unwarranted.

[102]

The weakness of the uneven scrutiny ground of appeal in this case is
    matched by the baldness of its assertion. The appellant groups several defence
    arguments, including the unlikelihood that the appellant would act so
    recklessly with the daughters of his friend; his limited opportunity to have
    committed the offences; the presence of his wife, nanny, friends and his own
    children; and the appellants action in taking M.M. to New York to see F.M.,
    and states simply that they were dismissed in a manner that suggested that the
    trial judge was applying different standards of scrutiny. This does not begin
    to approach the burden required to establish an uneven scrutiny argument. Nor,
    for the reasons outlined above, can it be said that the trial judge applied
    different standards of scrutiny in rejecting the evidence of D.M. and V.B.
    concerning the mouse incident. It is simply the case that the trial judge
    preferred the evidence of M.M. and A.H., and she was entitled to do so.

Conclusion

[103]

Credibility was central to this case. At the end of the day, the
    trial judge did not believe the appellant; believed the complainants; and found
    that the guilt of the appellant was established beyond a reasonable doubt.
    There is no basis to impugn her decision.

[104]

I would dismiss the application to admit the fresh evidence and dismiss
    the appeal.

Released: DW JUN 12 2017

Grant Huscroft J.A.

I agree. K. Feldman
    J.A.

I agree. David Watt
    J.A.





[1]
V.B.s testimony was not transcribed at the second
    trial. This account is taken from the trial judges summary. The appellants
    application to bring fresh evidence ­ the transcript of V.B.s testimony from
    the first trial  is addressed below.


