



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    the victim shall not be published in any document or broadcast or transmitted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.




C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. G.J.S., 2020 ONCA 317

DATE: 20200526

DOCKET: C66840

Lauwers,
    Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.J.S.

Appellant

Paul Calarco, for the appellant

Adam Wheeler, for the respondent

Heard: February 10, 2020

On
    appeal from the conviction entered on December 13, 2018 by Justice Meredith
    Donohue of the Superior Court of Justice, sitting without a jury, with reasons
    reported at 2018 ONSC 7251, and from the sentence imposed on March 6, 2019 by
    Justice Meredith Donohue of the Superior Court of Justice.

Trotter
    J.A.:


A.

introduction

[1]

This appeal involves the alleged sexual abuse of
    the appellants step-daughter, commencing in 1988 when she was seven years old,
    and continuing until she was 20.

[2]

The appellant was charged with sexual
    interference (
Criminal Code
, R.S.C. 1985, c. 46, s. 151(a)), sexual assault (s. 271), and
    sexual exploitation (s. 153(1)(a)). The first two charges alleged sexual
    touching during the earlier years. The sexual exploitation charge involved sexual
    intercourse in the later years, after the complainant was 12 or 14 years old.

[3]

The appellant was found not guilty of sexual
    exploitation. Although the trial judge found the complainant to be a credible witness,
    she concluded that the evidence relating to this time period was not
    sufficiently reliable. However, the trial judge found the appellant guilty on
    the other two charges, relying heavily on the complainants prior consistent
    statements to her sister and her mother, as well an incident where, upon
    hearing of the complainants allegations, her biological father threatened the
    appellant.

[4]

The appellant appeals his conviction and the sentence
    of four years imprisonment that was imposed.

[5]

I would allow the appeal from conviction and
    order a new trial. The distinction that the trial judge made between the two
    time periods, while somewhat delicate, was one that was available on the
    evidence. However, the trial judges differential findings rested on the misuse
    of the complainants prior consistent statements and the threatening incident. Although
    they were admissible to rebut an allegation of recent fabrication, the trial
    judge strayed further and found that the statements provided the reliability
    necessary to support [the complainants] testimony and that the threat lends
    support to what was happening in the family at the time. The improper use of this
    evidence formed an important part of the trial judges overall analysis and
    must result in a new trial.

B.

overview of the evidence

(1)

The Complainant

[6]

At the time of trial, the complainant was 37
    years old. She alleged that the appellant sexually abused her in the various
    homes that she lived in with her mother, her siblings, and the appellant.

[7]

The complainant testified that she had
    day-to-day challenges as a child as a result of A.D.D. and A.D.H.D., for which
    she took Ritalin. Her mother described her as slow. The trial judge described
    the complainant as having limited cognitive ability and still very much a
    child. The complainant is now married and has children of her own.

(2)

The Earlier Allegations

[8]

When the complainant was about seven years old,
    she was often drowsy from taking Ritalin and would rest in her bed before dinner.
    Late one afternoon, the appellant came into her bedroom and touched her vagina
    while he masturbated. The complainants mother was out of the house at the time,
    as were the other children. The appellant told the complainant he would hurt
    her and deny what he did if she ever told anyone. The complainant testified
    that this touching occurred two or three times a week, if not more, every time
    my mom would go out.

[9]

The complainant testified that the appellant
    started to insert his fingers into her vagina when she was 11 ½ to 12. After
    about a month of this, things escalated.

(3)

The Later Allegations

[10]

The complainant testified that, when she was 12
    to 12 ½ (which would have been in late-1993/early-1994), the appellant started
    to penetrate her with his penis. The first time this happened the other
    children were outside playing, while her mother was at bingo. The appellant
    came to her room and said, Its time. He penetrated her while wearing a
    condom. After ejaculating, he left the bedroom, renewing his threat to hurt her
    if she told anyone. The complainant was in pain and bled for two and a half
    hours. She had to throw out her sheets.

[11]

The complainant testified that it happened again
    a few days later, but this time the appellant ejaculated onto her sheets. When
    confronted with the fact that she testified at the preliminary inquiry that the
    appellant was wearing a condom at the time, the complainant asserted that there
    was a hole in the condom. The trial judge found that, this was clearly a
    flight of imagination. The complainant referenced throwing out sheets after
    this incident as well. It was unclear whether she threw out her sheets once or
    more.

[12]

The complainant testified that sexual
    intercourse continued from the age of 12 until she was 20 years old (in 2001),
    when she finally left the house. She said it happened two to three times a week,
    when she was home. During this period of time, the complainant periodically ran
    away from home. She stayed in group homes and treatment centres, as well as
    with friends. She accumulated a criminal record. The complainant became
    pregnant by her boyfriend and moved back home. She testified that, after she
    gave birth to this child, the appellant attempted sexual intercourse with a
    condom, but stopped because it hurt her too much.

[13]

The complainant also testified that, when she
    was 13 to 14, the appellant tried to get her to suck his penis. She bit his
    penis and ran away. He did not attempt this again. Within the same timeframe,
    the appellant performed cunnilingus on the complainant on a few occasions,
    including when she moved back into the family home while she was pregnant.

(4)

Evidence of the Complainants Disclosures

[14]

The testimony relating to the complainants
    disclosure of the sexual abuse was contradictory. The complainant said that she
    made her first disclosure to her sister, T.S., when she was 12. T.S. said that
    they had to tell their mother.

[15]

T.S., who is 7 years older than the complainant,
    testified that her sister came into her bedroom with tears in her eyes and
    told her that the appellant touched her in her private area with his fingers.
    She appeared scared and very intense. At T.S.s insistence the two went
    downstairs and T.S. told their mother that the complainant had something to
    tell her. T.S. did not stick around for that discussion. She recalled that when
    this incident occurred, the complainant was probably 6 or 7, no older than
    that. T.S. also testified that she was home most nights, 90% of the time,
    doing homework. She could not recall any other disclosures being made.

[16]

The appellants mother, S.M., also testified
    about the complainants disclosure. As discussed below, S.M. displayed extreme
    disdain for the appellant on many occasions while testifying. Her evidence was
    less clear on the issue of disclosure. Initially, she said that the complainant
    disclosed the abuse following a doctors visit. Because the complainant had a
    learning disability and behavioural problems, S.M. took her to the doctor. S.M.
    explained that the doctor said, theres something going on in her life that
    shes not telling us. And when I question, she came and told me that her dad
    was touching her. On the other hand, S.M. described an incident when she heard
    the appellant say something to the complainant, who responded by saying, Im
    telling mom what youre doing. And she came to me and told me that dad was
    coming in her room at night and touching her.

[17]

S.M. first testified that the complainant was 10
    or 11 when she disclosed that the appellant was touching her; in
    cross-examination, it was 8 or 9. The complainant was crying and mentioned
    something about being touched on the leg. When S.M. confronted the appellant,
    he started bawling like a baby and said he would swear on his dead fathers
    grave that he never touched her.

[18]

S.M. called the Childrens Aid Society (CAS) after
    this disclosure but was apparently told that they could not help. She said that
    there were two other disclosures, but she could not remember when they were
    made. There was no complaint of sexual intercourse in any of the complainants disclosures.

[19]

S.M. testified that the CAS eventually became
    involved. She also said, I wasn't the only one [the complainant] told. S.M.
    thought the complainant told her teachers. The complainant did not report doing
    so. S.M. agreed that there was a police investigation in 1995, when the
    complainant was 14.

[20]

S.M. took the complainant to the doctor to put her
    on birth control. This occurred when she was 16 because they get active. The
    complainant believed her mother put her on birth control because she knew what
    the appellant was doing to her, and claimed that it happened when she was
    younger.

(5)

The CAS Records

[21]

The appellant obtained production of CAS records
    on an application under s. 278 of the
Criminal Code
.
The complainant was cross-examined on these
    records. At the conclusion of the
viva voce
evidence, the trial judge admitted most of these records for their truth,
    based on
R. v. Khan
, [1990]
    2 S.C.R. 531. These records included: (1) an August 29, 1995 interview with the
    complainant (who was 14 at the time); and (2) notes made by a caseworker on
    October 25, 1995, when the complainant was interviewed by the police. Portions
    of these notes contradicted the complainants testimony. For instance, she told
    a CAS worker that the appellant penetrated her anally, an allegation from which
    she resiled at trial.

(6)

The Threat by the Complainants Biological
    Father

[22]

S.M. testified that, after the complainant made
    one of her disclosures, S.M. called her former husband, the complainants biological
    father, to tell him what had happened. The father came to her house one day,
    grabbed the appellant by the neck, and threatened to kill him if he ever
    touched the complainant again.

[23]

The complainant gave a different account. She
    testified that she told her biological fathers best friend about the abuse,
    who she believed told her father. She also witnessed the physical confrontation
    between her biological father and the appellant.

C.

reasons for judgment

[24]

The trial judge thoroughly reviewed the testimony
    of the three witnesses. She identified six points of conflict in their
    evidence. Five of them concerned the complainants earlier allegations of the
    appellant touching her vagina.

[25]

The trial judge also addressed inconsistences in
    the complainants evidence, between her trial testimony, her preliminary
    inquiry testimony, her police statement in 2016, and what she told the police
    and a CAS worker in 1995. The trial judge listed 14 items, some of which related
    to the earlier years of abuse. She classified some as more serious than others.
    The trial judge assessed these inconsistencies in light of the Supreme Courts
    direction in
R. v. W.(R
.)
, [1992] 2 S.C.R. 122, regarding an
    adult testifying about events experienced as a child.

[26]

The trial judge described the complainant as
    still very much a child who displayed muddled thinking and was quite unable
    to have any insight into the contradictions in her evidence: at para. 80. On
    the issue of her sincerity, the trial judge said, at paras. 81-82:

On the whole however, I found that with her
    limited cognitive ability she was doing her best to be sincere and truthful.
    She was trying her best to be honest
. She was
    certainly adamant that there was sexual touching from the accused over multiple
    occasions. At one point in cross-examination she said Yes, as Ive told you
    five million dozen times!

The issue becomes less one of credibility
    than one of reliability
. [Emphasis added.]

[27]

On the issue of reliability, the trial judge drew
    a distinction based on the complaints age when she alleged that said certain
    events occurred. The trial judge found that the sexual intercourse allegations were
    unreliable. Her evidence was self-contradictory in terms of whom she told;
    whether there was anal intercourse; whether condoms were used; and what time of
    day it occurred: at para. 84. She also observed that there were problems with
    the complainants evidence of one episode of cunnilingus when she was 12-14.
[1]
As she said, at para. 85: I
    find the evidence, as whole, is not sufficiently reliable to support the charge
    of sexual exploitation involving his touching her with his penis.

[28]

Turning to the reliability of the earlier
    allegations, the trial judge said, at paras. 86-88:

In contrast
,
    there are a number of facts which I accept on her early allegations of sexual
    touching. Her description of starting to run away and stay away from the home
    is supported by her mother's testimony and is a natural response to such
    alleged touching. The CAS records note her wishes to not be at home if the
    accused was there.
Her disclosure to her mother and sister is consistent
    with their testimony and their description of her demeanour of fear, tension,
    and tears. Her mother also describes the reaction of the complainant's
    biological father in threatening the accused in a similar manner to the
    complainant's description. That threat lends support to what was happening
    in the family at the time.

[The complainants] testimony of the sexual
    touching from ages 7 to 14 was clear and convincing and not contradicted in any
    material way.
I find that the early disclosure to her mother, and
    particularly her sister, provides the reliability necessary to support her
    testimony
.

The elements of sexual assault and sexual
    interference are therefore satisfied by the evidence of this early sexual
    touching. [Emphasis added.]

[29]

The appellant was convicted of sexual
    interference and sexual assault. The sexual assault conviction was conditionally
    stayed:
Kienapple v. The Queen
, [1975] 1 S.C.R. 729.

D.

positions of the parties

[30]

The appellant raises numerous grounds of appeal.
    He submits the trial judge erred in: (1) failing to make proper credibility
    determinations, including the failure to deal with the animus of the
    complainant and her mother; (2) how she addressed the issue of reliability
    across the two time periods; (3) failing to give adequate reasons; and (4)
    misusing the complainants prior consistent statements and her fathers threat
    to kill the appellant. The appellant also submits that the verdict is
    unreasonable. The respondent counters each of these alleged errors, relying
    principally upon appellate deference as an answer.

E.

analysis

(1)

Introduction

[31]

As noted above, I would allow the appeal based
    on the trial judges use of the complainants prior consistent statements to
    her mother and sister, and the threatening incident involving the complainants
    biological father. This ground of appeal also engages a consideration of the
    sufficiency of the trial judges reasons in explaining how she used this
    evidence. Given that there must be a new trial, it is not necessary to address
    the other grounds of appeal, save one  the appellants contention that the
    verdict is unreasonable and that he is entitled to an acquittal. I would reject
    this ground of appeal, which I can deal with briefly.

(2)

The Verdict Was Not Unreasonable

[32]

In support of his submission that the verdicts
    are unreasonable and cannot be supported by the evidence, within the meaning of
    s. 686(1)(a)(i) of the
Criminal Code
, the appellant points to the frailties in the complainants
    evidence, the shortcomings in the supportive evidence of the complainants
    mother and sister, and the lack of corroboration. In reality, the appellants
    complaint is a thinly veiled invitation to have this court substitute its own
    credibility assessments for those made by the trial judge:
R. v. Howe
(2005), 192 C.C.C. (3d) 480
    (Ont. C.A.), at para. 47.

[33]

An unreasonable verdict claim may be based on
    findings of credibility:
W.(R.
)
, at p. 131. However, as McLachlin J. (as
    she then was) said, at p. 131: The trial judge has the advantage, denied to
    the appellate court, of seeing and hearing the evidence of witnesses; see also
R. v. W.H
.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 30-31. Further, an
    appellate court must not interfere unless it is established that the trial
    judges credibility assessments cannot be supported on any reasonable view of
    the evidence: see
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 7;
R. v.
    R.P
.
, 2012 SCC 22,
    [2012] 1 S.C.R. 746, at para. 10.

[34]

Subject to what I have to say below about the
    trial judges use of the complainants prior consistent statements and the
    threatening incident, I see no error in the trial judges credibility and
    reliability assessments. It was open to the trial judge, weighing all of the
    evidence, to accept the complainants account of the earlier allegations that
    involved touching. The trial judge confronted the shortcomings in the
    complainants evidence, including both the internal and external
    inconsistencies in her first-hand account of being abused. The appellant has
    not established that his convictions cannot be supported on any reasonable
    view of the evidence.

[35]

Nor are the verdicts unreasonable because they
    are inconsistent, as the appellant submits. The appellant relies on
R. v. Tillekaratna
(1998), 124 C.C.C.
    (3d) 549 (Ont. C.A.), in which Charron J.A. (as she then was) found that, on a
    multi-count indictment against a single accused person, [t]he evidence with
    respect to any one incident was too wound up with the evidence on the others to
    be logically separable: at para. 11. The appellant contends that, because the
    evidence in this case all came from the same witnesses, the differential
    verdicts are irreconcilable. I disagree.

[36]

In
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, Charron J. addressed the issue of
    inconsistent verdicts once again. Although the case involved a multi-accused situation,
    she also commented upon the single-accused/multiple-count scenario. She said,
    at para. 8, that different verdicts may be reconcilable on the basis that the
    offences are temporally distinct, or are qualitatively different, or dependent
    on the credibility of different complainants or witnesses and that [t]he
    strength of the evidence relating to each count may not be the same, leaving
    the jury with a reasonable doubt on one count but not on the other.

[37]

That is the situation in this case. Even though
    the evidence came from the same witnesses, their testimony related to incidents
    that were temporally distinct, relating to different time periods. The
    alleged conduct was also qualitatively different. During the first time
    period, the appellant was alleged to have repeatedly touched the complainants
    vagina; in the second time period, the allegations included sexual intercourse.
    Moreover, it was open to the trial judge to find that the strength of the
    evidence on the latter allegations was undermined by the complainants evidence
    relating to bed-sheets and condom use.

[38]

In short, the trial judge was not required to
    accept the evidence as a package, yielding a uniform result across counts. I
    would reject this ground of appeal.

(3)

Prior Consistent Statements and Insufficient
    Reasons

[39]

The appellant also submits that the trial judges
    reasons are inadequate. In particular, he points to her brief reliability
    analysis in paras. 86-88 on the sexual interference and sexual assault counts (as
    set out in para. 28, above). The appellant contends that they are conclusory,
    amounting to little more than an assertion of, I believe the complainant.

[40]

I reject the appellants broad claim about the
    sufficiency of the reasons. Read as a whole, they satisfy the functional
    requirements of reasons:
R. v. R.E.M
.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    paras. 11, 35, 55. They permit meaningful appellate review. In general, the
    reasons pose no difficulties in discerning why the trial judge decided the case
    as she did:
R.E.M
.
, at para. 17;
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 524-525.

[41]

However, in addressing the reliability problems
    concerning the earlier allegations, the reasons are unsatisfactory in their
    treatment of the threat made by complainants biological father, and her prior
    consistent statements to her mother and sister. The trial judge viewed this
    evidence as significant, finding that the threat lends support to what was
    happening in the house at the time, and the statements provide the
    reliability necessary to support her testimony. Read as a whole, her reasons demonstrate
    that she used this evidence for the improper purpose of confirming the
    substance of the complainants allegations.

[42]

During the trial, the defence made an allegation
    of recent fabrication, said to arise from the breakdown of the appellants
    marriage to S.M. As noted above, S.M. was highly critical of the appellant in
    her testimony. However, the marriage did not come to an end until 2016, much
    later than the complainants initial disclosures. The Crown relied upon the
    complainants prior statements to her mother and sister to neutralize the recent
    fabrication allegation. The threatening incident was also capable of playing
    the same role given that the incident was instigated by the fathers knowledge
    of the complaint made by his daughter against the appellant.

[43]

The trial judge acknowledged the Crowns
    position at para. 74: The Crown submitted that the assertion that this was a recent
    fabrication is rebutted by the fact that the complainant disclosed sexual abuse
    by the accused in 1995 and earlier. The trial judge referenced this body of
    evidence again in that part of the judgment reproduced in para. 28, above. However,
    she made no further mention of recent fabrication; her language reflects a more
    extensive use of this evidence. For convenience, I reproduce the critical
    aspects of this passage again:

Her disclosure to her mother and sister is
    consistent with their testimony and their description of her demeanour of fear,
    tension, and tears. Her mother also describes the reaction of the complainant's
    biological father in threatening the accused in a similar manner to the
    complainant's description.
That threat lends support to what was
    happening in the family at the time
.

[The complainants] testimony of the sexual
    touching from ages 7 to 14 was clear and convincing and not contradicted in any
    material way.
I find that the early disclosure to her mother, and
    particularly her sister, provides the reliability necessary to support her
    testimony
. [Emphasis added.]

[44]

As a preliminary matter, I note that reference
    to the complainants evidence of disclosure being consistent with their
    testimony and their description of her demeanour of fear, tension, and tears
    is not entirely accurate. As discussed above, there were differing accounts of
    how the allegations came to light, especially in the evidence of S.M.
[2]
Moreover, the trial judges
    reference to the complainants evidence as clear and convincing and not
    contradicted in any material way overstates the cogency of her evidence.
    Earlier in her reasons, the trial judge identified a number of inconsistencies
    in her evidence, both internal and external, related to this time period.

[45]

I accept the appellants submission that the
    trial judges reference to the threat made by complainants father was
    problematic. The respondent submits that the trial judges finding  [The
    biological fathers] threat [to the appellant] lends support to what was
    happening in the family at the time  was a reference to the complainant
    having disclosed the abuse, and nothing more. Had this been the case, this
    would have been a legitimate use of this evidence: see
R. v. Stirling
, 2008 SCC 10, [2008] 1
    S.C.R. 272, at paras. 5-7. But the trial judge went further.

[46]

It was important that the evidence of this
    incident be carefully contained. The evidence was unclear on the issue of who told
    the complainants father about the allegations, but the information surely
    originated with the complainant. In view of his reaction, it is clear that her
    father believed the allegations. The trial judge failed to restrict the use of
    this evidence to the sole basis upon which it was admissible  to neutralize
    the recent fabrication allegation. Finding that the threat lends support to
    what was happening in the family at the time indicates a more substantive use,
    not one restricted to the mere fact that it was reported at a particular point
    in time.

[47]

This type of reasoning is even more apparent in
    the trial judges use of the complainants statements to her mother and sister,
    which she said provides the reliability necessary to support her testimony.
    This statement extends beyond recent fabrication. The trial judge improperly
    used this evidence to enhance the complainants general trustworthiness:
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at paras. 37, 40.

[48]

In
R. v. Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused [2017]
    S.C.C.A. No. 139, Hourigan J.A. explained, at para. 41: [prior consistent
    statements] cannot be used for the prohibited inference that consistency enhances
    credibility, or the incorrect conclusion that the simple making of a prior
    consistent statement corroborates in-court testimony; see also
R. v. D.C
.
, 2019 ONCA 442, at para. 19;
R. v. S.K
.
, 2019 ONCA 776, 148 O.R. (3d) 1, at
    para. 90; and
R. v. D.K
.
, 2020 ONCA 79, 60 C.R. (7th) 123, at
    para. 35. This appears to be exactly how the trial judge used the complainants
    prior statements and the threatening incident.

[49]

The respondent argues that this evidence was admissible
    under the narrative as circumstantial evidence exception, not to corroborate
    the evidence of the witness, but to provide the surrounding circumstances and
    context to evaluate the credibility and reliability of the witnesss in-court
    testimony:
Khan
, at
    para. 39;
Dinardo
, at
    para. 37;
R. v. G.C.
, [2006]
    O.J. No. 2245, at paras. 20-22. This was not the basis of admissibility
    advanced by the Crown at trial; nor is there any indication in the trial
    judges reasons that she used the evidence for this limited purpose. The trial
    judge gave no explanation of how this evidence provides the reliability
    necessary to support her testimony or how it lends support to what was
    happening in the family at the time.

[50]

Moreover, the allegation of recent fabrication
    was a challenge to the complainants credibility or sincerity (i.e., that she
    made-up the allegations). It had nothing to do with the complainants
    reliability. As the trial judge said in the passage reproduced at para. 26,
    above: The issue becomes less one of credibility than one of reliability.
    Neither the threatening incident nor the complainants statements to her mother
    and sister were capable of providing the support that the trial judge
    attributed to this evidence.

[51]

In summary, looking at the trial judges reasons
    as a whole, this evidence was used improperly to enhance the complainants general
    trustworthiness as a witness through her repetition of the allegations on prior
    occasions:
Stirling
,
    at para. 10;
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42.

[52]

In
Dinardo
, the Supreme Court disagreed with the majority holding in the court
    of appeal that the trial judges misuse of the prior consistent statements
    occasioned no prejudice. Writing for the Court, Charron J. said, at para. 40: The
    trial judge relied heavily on the corroborative value of the complainant's
    prior statements in convicting Mr. Dinardo. He was clearly of the view
    that the complainant's consistency in recounting the allegations made her story
    more credible.

[53]

The trial judge followed the same path of
    reasoning in this case in her use of the threatening incident and the
    complainants statements to her mother and sister. Her references to this
    evidence appeared in a critical part of her judgment where she explained why
    the complainants evidence was sufficiently reliable in relation to the earlier
    allegations, even though it had not been on the later allegations. It was
    determinative of the appellants guilt.

[54]

I would allow the appeal on this ground.

F.

disposition

[55]

I would allow the appeal from conviction. I
    would lift the stay on the sexual assault conviction and order a new trial on
    both counts. In the circumstances, it is unnecessary to consider the appeal
    against sentence.

[56]

As a result of the COVID-19 emergency, the panel
    relieved the appellant from the term of his bail that requires him to surrender
    into custody prior to this decision being released.

Released: PL May 26, 2020

Gary Trotter J.A.

I agree. P. Lauwers
    J.A.

I agree. Fairburn J.A.





[1]

The complainant testified to multiple incidents of
    cunnilingus.



[2]

It might also be said that the trial judges reference to
    fear, tension, and tears is incorrect. Earlier in her reasons, at para. 49,
    she said the complainants mother testified that the she was bawling like a
    baby when she made the disclosure. This was an error. The mother testified
    that it was the appellant who was bawling like a baby and this was when he
    was confronted with the allegations.

