



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. E.B., 2021 ONCA 635

DATE: 20210921

DOCKET: C67887

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

E.B.

Respondent

Lorna Bolton, for the appellant

Lauren M. Wilhelm, for the respondent

Heard: April 23, 2021 by videoconference

On appeal from the acquittal entered by Justice R.
    Cameron B. Watson of the Ontario Court of Justice on December 12, 2019.

Zarnett J.A.:

INTRODUCTION

[1]

The respondent was acquitted, after trial, of charges of sexual assault
    and sexual interference, contrary to ss. 271 and 151, respectively, of the
Criminal

Code
, R.S.C. 1985, c. C-46
.

[2]

The offences were alleged to have occurred when the complainant, J.C., then
    five years old, was at the home of the respondent, her
de facto
stepfather, for a sleepover. The Crowns case included statements made by J.C. to
    her mother, paramedics, a nurse, and in two police interviews, which the trial
    judge admitted after a
voir

dire
,
and DNA evidence that
    the respondents semen was found on a pair of J.C.s underwear.

[3]

The trial judge acquitted the respondent. He found the respondents denial
    of any improper sexual conduct believable. Even if he did not believe the
    respondents testimony, it left him with a reasonable doubt; and in any event, he
    was not satisfied on the balance of the evidence that the Crown had proven its
    case beyond a reasonable doubt.

[4]

The Crown appeals, raising two issues. First, it submits that the trial
    judges reasons are inadequate to explain the acquittal in the face of a
    powerful Crown case. Second, it argues that the trial judge, in making
    credibility determinations, applied a higher degree of scrutiny to the Crowns
    evidence than to that of the respondent. The Crown seeks a new trial.

[5]

For the reasons that follow, I would dismiss the appeal.

[6]

The Crown may appeal an acquittal only on a question of law:
Code
,
    s. 676(1)(a). The legal requirement that reasons be adequate is aimed at
    ensuring the reasons explain what the trial judge has decided, thus permitting
    appellate review. As the Supreme Court of Canada has held, caution must be
    taken not to create a ground of appeal of unreasonable acquittal by seizing
    on perceived deficiencies in a trial judges reasons for acquittal:
R. v.
    Walker
, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 2.

[7]

The reasons of the trial judge here meet the legal requirement of
    adequacy, as they do not foreclose meaningful appellate review. They explain what
    the trial judges factual and credibility determinations were, how he made them
    taking into account the evidence as a whole, and why, on the basis of these
    determinations, the trial judge concluded that an acquittal was warranted. Concerns
    about whether the trial judge should have taken a different view of the
    evidence do not show that the reasons fall below the legal requirement of
    adequacy.

[8]

The Crowns different standards of scrutiny argument also fails. The
    Crown has not met the high burden of showing that the credibility
    determinations the trial judge made were the result of a legally erroneous
    application of different standards of scrutiny to the evidence, sufficient to
    displace the deference owed to the trial judge on issues of credibility.

THE TRIAL PROCEEDINGS

(1)

The Crowns Case at
    Trial

[9]

For about four and a half years, J.C.s mother, S.C., was in a
    relationship with the respondent. They lived together for a portion of this
    time. The respondent acted as
de facto
stepfather to J.C. The respondent
    and S.C. also had a son together who was about a year younger than J.C.

[10]

When
    S.C. and the respondent ceased living together, the respondent was permitted
    weekend visits with his son and J.C.

[11]

S.C.
    testified that on July 30, 2016, the children went to the respondents home for
    a sleepover. When S.C. called the next day to see how the children were, J.C. was
    hysterical. Once the children returned home, J.C. was a little miserable and
    would not settle down after being put to bed.

[12]

S.C.
    went to J.C.s bedroom and saw her lying naked with her legs spread on the bed;
    S.C. observed a rash on her vagina. J.C. told her mother that it hurt and was
    hot. S.C. asked, is he touching you? Initially, she received no response, but
    after telling J.C. that she needed to answer, J.C. stated, he likes to play
    peek-a-boo. She lay on her side and made gestures which, in closing
    submissions, defence counsel described as motions of opening her vaginal area
    and pointing to her buttocks. J.C told S.C. that the respondent pulled her
    pants down to her knees and that it hurt a bit. She also told S.C. that the
    respondent used what her brother has  S.C. explained that J.C. had seen her
    brother naked and knew he had a penis. S.C. asked J.C. where her brother had
    been during this. J.C. said that he was at the end of the bed but was told not
    to look.

[13]

S.C.
    called 911. Two paramedics attended.

[14]

The
    paramedics evidence was that the senior paramedic explained to J.C. that her
    mother had noticed redness on J.C.s front area and bum, to which J.C. said vagina.
    He asked J.C. if she was in pain, to which she nodded and said it was itchy. He
    then told J.C. that her mother had mentioned a game called peek-a-boo. He
    asked her to explain the game, but she was reluctant to do so. He then asked
    her to use a teddy bear to show him; she poked its eye, and said, I dont want
    to poke it where it really happens. When asked what this meant, she turned the
    bear over and poked it where its rectum and vagina would be. He asked her what was
    used to touch those spots and suggested fingers or the respondents private
    parts. J.C. said she did not know. J.C. said that the respondent comes in while
    she is sleeping and whispers, lets play peek-a-boo, and that she does not
    sleep well at his home.

[15]

The
    paramedics asked S.C. to collect the clothing that J.C. had changed out of that
    night. S.C. testified that she retrieved the clothing that J.C. had worn to the
    respondents residence and back home, which she thought included two pairs of
    shorts, two shirts, and one or two pairs of underwear. J.C. was taken to the
    hospital and the clothing was turned over to hospital staff.

[16]

The
    ER nurse who saw J.C. at the hospital noted that she volunteered daddy plays
    peek-a-boo while gesturing to her groin area.

[17]

A
    sexual assault examination was conducted two days later. It proved
    inconclusive.

[18]

The
    police conducted a video-taped interview of J.C. on August 2, 2016. Although
    she was unable to articulate in detail what had occurred, she said, among other
    things, that the respondent wakes her up to play peek-a-boo and that she enjoys
    it. Later, she said it hurts when they play peek-a-boo and identified her
    vagina as where it hurts. Although she would not say what the respondent did
    during peek-a-boo, she did say it happened on the respondents bed.

[19]

The
    police sent J.C.s clothing to the Centre for Forensic Sciences (the CFS).

[20]

The
    police also advised S.C. to take notes of J.C.s words and actions, which S.C.
    did for the next several months. Statements or actions that S.C. noted included
    J.C. saying that the respondent used his penis and that she did not want to go
    to the respondents house because he plays peek-a-boo. When testifying, S.C.
    also described an occasion she did not document of J.C. lying down, spreading
    her legs, and saying he put it in here, referring to her vagina, and, when S.C.
    asked, I thought you said he put it in your bum, J.C. responding, well, he
    put it there too. S.C. also testified that J.C. said that the respondent wiped
    her afterwards with wet toilet paper. S.C. only partially recorded this
    statement.

[21]

On
    March 24, 2017, the police conducted a further video-taped interview of J.C. On
    this occasion, she answered only a few of the questions asked. When asked if
    anyone had touched her private parts, she said the respondent had (although she
    was not sure with what), that he had done so at the respondents home, that her
    brother was on the bed watching TV at the time, and that the respondent had
    pulled her pants down. When asked what parts of her body the respondent had
    touched, J.C. gestured at her vagina.

[22]

The
    underwear examined at CFS had J.C.s D.N.A and male D.N.A.  it was stained
    with a patch of semen. The expert witness from the CFS testified that the male
    DNA matched the respondents DNA, that the random match probability was 1 in 51
    quadrillion, and that the semen on the underwear had not been laundered with
    detergent and water.

[23]

J.C.
    testified at trial. She was six years old at the time. After viewing her video
    statements to the police, she agreed she was in the movie and was doing her best
    to tell the truth. She was reluctant to discuss the allegations. She did not
    remember playing peek-a-boo. However, she stated that she did not want to see
    the respondent again because she did not want him to do it again. She
    eventually elaborated on what it was that she did not want done again: he put
    his penis into my vagina and then he wiped it. On cross-examination, she was
    not sure what kind of people had a penis and what kind had a vagina. She also
    did not know what it meant when she said someone put a penis in her vagina.

(2)

The
Khan/Khelawon
Ruling

[24]

At
    the conclusion of the Crowns case, the trial judge granted the Crowns
    application to admit the video statements of J.C. made on August 2, 2016 and
    March 24, 2017, pursuant to s. 715.1 of the
Criminal

Code
.
    The trial judge also admitted the various hearsay statements and gestures
    attributed to J.C. by the Crown witnesses pursuant to the principles in
R.
    v. Khan
, [1990] 2 S.C.R. 531 and
R. v. Khelawon
, 2006 SCC 57, [2006]
    2 S.C.R. 787.

[25]

The
    defence conceded that the video statement taken on August 2, 2016 was
    admissible pursuant to s. 715.1. The trial judge admitted the second video
    statement taken on March 24, 2017 because the subsequent statements of J.C. that
    S.C. had documented and the DNA evidence necessitated a second interview. While
    that interview was not immediate, it took place within a reasonable period of
    time. Both interviews were taken at a Child Advocacy Centre in a less hostile
    and more comfortable environment than a court.

[26]

The
    trial judge held that the Crown had established that J.C.s hearsay statements
    and demonstrations were sufficiently reliable to justify their admission into
    evidence for the truth of their contents. In reaching this conclusion, he noted
    the following strong indicia of reliability: (i) J.C. was a disinterested
    witness; (ii) her initial statements to her mother were natural and spontaneous,
    and her statements to the paramedics emerged naturally and in her own words and
    demonstrative actions; (iii) J.C. lacked the life experience or capacity to make
    up [the] explicit sexual acts [she] complained of; (iv) there was no evidence
    anyone had planted ideas in J.C.s head; and (v) the reliability of the
    statements was corroborated by the unexplained presence of the respondents
    semen in her underwear. He said, it is extraordinarily unlikely that [S.C.]
    and [J.C] would be fabricating a story at the time they chose to do so which
    coincidentally coincided with the presence of the semen from [the respondent]
    being present in [J.C.s] underwear. The trial judge also commented with
    respect to J.C.s oral testimony that she was clearly intimidated by the court
    process and her reluctance to discuss the allegations was not surprising for a
    young witness.

[27]

The
    trial judge concluded: It will be for me, wearing my separate 'hat' as the
    trier of fact at the close of the case, to determine the weight to attach to
    the statements and demonstrations of [J.C.] in light of the entire evidentiary
    record.

(3)

The Respondents Case
    at Trial

[28]

The
    respondent gave evidence denying any wrongdoing. He testified that J.C. was
    upset on the phone call with her mother because he had spanked her on the
    bottom over her clothes. He denied playing peek-a-boo in the sexual manner J.C.
    described. He said that the children would play hide and seek together in his
    room but called it peek-a-boo.

[29]

The
    respondent was unable to explain how his semen ended up on J.C.s underwear. He
    gave certain evidence that was, in the defences closing argument, said to be
    relevant to that question.

[30]

First,
    the respondent stated that although both he and S.C. were dating other people
    at the time, his sexual relationship with S.C. continued until the time of the
    alleged offences. He testified that they would have sex in S.C.s bedroom. At
    the completion of sex, he would clean his penis by wiping it with clothes which
    were on the floor, which included J.C.s clothes. The respondent testified that
    one of these incidents took place about a week before the weekend in question.

[31]

Second,
    and while he initially denied it, the respondent also testified that on the
    night of the alleged offence, he had video sex with his girlfriend on the floor
    of his room while the children were asleep on his bed. He said that he covered
    himself with a blanket. After he ejaculated, he cleaned himself with his shirt.
    This shirt, as well as the childrens clothes, were placed in a pile in the corner
    of the room.

[32]

The
    next day, he showered the children and dressed them in clean clothes to wear
    home. He handwashed the childrens clothes and dried them on a heater in his
    room before returning the children to S.C.

(4)

The Trial Judges
    Decision to Acquit

[33]

In
    his reasons, the trial judge reviewed authorities that explained the difference
    between a threshold reliability finding (the precondition to admitting evidence
    under
Khan

and
Khelawon
)
, and the ultimate reliability and weight to be assigned
    to such evidence. He also reviewed authorities concerning the treatment of the evidence
    of children.

[34]

The
    trial judge conducted the analysis set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742
. At the first
    stage, he found the respondent to be a believable witness whose denial was not
    shaken in cross-examination. While his lack of explanation of why his semen was
    in the complainants underwear was somewhat hard to accept and somewhat hard
    to believe, the trial judge instructed himself that it was not the
    respondents onus to come up with an innocent explanation. The trial judge observed
    a number of times that the respondent was a simple and unsophisticated man. He
    considered the respondent to have told a story that was simple and unsophisticated,
    but believable.

[35]

The
    trial judge continued the
W.(D.)

analysis to the second stage, and
    held that even if he did not believe the respondent, he was left with a
    reasonable doubt by his evidence. He proceeded to the third stage and held that
    even if the respondent had not raised a reasonable doubt, the Crown had not met
    its burden to prove the essential elements of the offences beyond a reasonable
    doubt.

[36]

The
    trial judge had reservations about the credibility and reliability of J.C. and
    S.C.s evidence when considered and weighed with the totality of the evidence.
    He noted that J.C did not recall what it means to put a penis in a vagina in
    her testimony at trial, and that she acknowledged that these were words she has
    only spoken about with her mother. The trial judge noted that J.C. did not
    recall what, if anything, happened at the respondents home. As such, he concluded
    he could not give much weight to her evidence.

[37]

The
    trial judge had trouble placing much weight on any of the notes taken by S.C.
    after the police had asked her to keep notes because they were not all made
    contemporaneously with J.C.s utterances. Although some were originals, some
    were created from point form notes that were then destroyed. This clouded the
    truth-seeking function of the trial and the weight of S.C.s evidence was
    substantially reduced.

[38]

The
    trial judge also gave diminished weight to the evidence of the paramedics, whom
    he considered not properly trained to conduct sexual assault investigations. He
    found them to be misguided in their mandate and in conducting a
    quasi-investigation based on what they were told by S.C.

[39]

The
    trial judge explained, in connection with the reservations he expressed about
    the evidence of J.C. and S.C., that he had made his
Khan/Khelawon
ruling prior to hearing the evidence of the respondent.

ANALYSIS

(1)

Did the trial judge
    err by failing to provide adequate reasons?

[40]

The
    failure of a trial judge to give adequate reasons, in the sense of reasons that
    permit appellate review, is an error of law. However, [i]f deficiencies in the
    reasons do not, in a particular case, foreclose meaningful appellate review,
    but allow for its full exercise, the deficiency will not justify [appellate]
    intervention:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at
    paras. 25, 28.

[41]

The
    assessment of the adequacy of reasons is thus concerned with whether the
    reasons explain what was decided and why, not with the substantive correctness
    of the explanation provided. The requirement for adequate reasons is not an
    invitation for an appellate court to substitute its perceptions of what factual
    and credibility findings should have been made, nor does it provide a remedy
    for a party who, from the reasons, knows why the verdict was reached but is in
    informed disagreement with the trial judge: see
R. v. Gagnon
, 2006
    SCC 17, [2006] 1 S.C.R. 621, at para. 23;
R. v. Braich
, 2002 SCC 27, [2002]
    1 SCR 903, at para. 21.

[42]

Where
    a case turns on credibility, the reasons must show that the trial judge has
    seized the substance of the issue  whether the accuseds evidence, in the
    context of the evidence as a whole, left the judge with a reasonable doubt as
    to the accuseds guilt. The degree of detail that the trial judge is required
    to use when explaining their credibility findings in support of this ultimate
    question depends on the nature of the case and may vary with the evidentiary
    record:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 31, 50,
    and 51;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23,
    30. The fact that a trial judges reasons are ambiguous or imperfect is not
    sufficient to justify appellate intervention:
R. v. G.F.
, 2021 SCC 20,
    71 C.R. (7th) 1, at paras. 76-79.

[43]

The
    adequacy of the reasons must also be assessed in light of whether they convict
    or acquit. In
Walker
, at para. 2, Binnie J. explained:

[W]hile the trial judge's duty to give reasons applies
    generally to acquittals as much as to convictions, the content of the reasons
    necessary to give full effect to the right of appeal is governed by the
    different issues to which the reasons are directed on an acquittal (perhaps no
    more than the basis of a reasonable doubt) and a conviction (factual findings
    showing the pathway to conviction, explaining why significant elements of the
    evidence are accepted, rejected or fail to raise a reasonable doubt). Caution
    must be taken to avoid seizing on perceived deficiencies in a trial judge's
    reasons for acquittal to create a ground of "unreasonable acquittal"
    which is not open to the court under the provisions of the [
Code
].

[44]

The
    Crown argues that the trial judges reasons are inadequate in two pivotal respects:
    (i) they do not adequately address the DNA evidence; and (ii) they are
    irreconcilable with the
Khan/Khelawon

ruling.

(a)

Did the trial judge
    err by failing to adequately address the DNA evidence?

[45]

The
    Crown argues that the key issues in the case were the credibility of the
    respondents denial and the reliability of J.C.s evidence. The DNA evidence
    was powerful evidence bearing on both.

[46]

The
    trial judge said in his reasons that the respondent was unable to explain the
    presence of his semen on the complainants underwear, but, the Crown submits,
    did not adequately explain how in light of that he could accept the
    respondents denial of sexual misconduct.

[47]

The
    Crown further submits that, at trial, counsel for the respondent had argued
    that there were two possible innocent explanations. The first was that the
    underwear turned over by S.C. were not those worn by J.C. at the respondents
    residence, but a pair used by the respondent to wipe his penis after sex with
    S.C. on a prior occasion. The second was that the semen must have been
    transferred to J.C.s underwear from whatever the respondent used to wipe
    himself after phone sex with his girlfriend on the evening J.C. slept over. The
    Crown argues that the reasons are inadequate since the trial judge did not seem
    to accept either explanation or, if he did, describe how he could have in light
    of evidence that the Crown says undermined both.

[48]

The
    Crown suggests that this case is similar to
R. v. L.M.
, 2019 ONCA 945,
    59 C.R. (7th) 410, in which this court allowed a Crown appeal from an acquittal
    on charges of sexual offences, due to insufficient reasons. In
L.M.
,
    the trial judge found that the accused had confessed to a sexual crime,
    disbelieved the accuseds denial at trial, found that the accuseds evidence
    did not leave him with a reasonable doubt, but acquitted at the third stage of
    the
W.(D.)
analysis. This court found that the trial judge flatly
    rejected the denials of the respondent, found his polygraph statement to be
    voluntary, called parts of it a confession, and never reconciled this
    evidence with an acquittal. Nor did he articulate the basis for his verdict:
L.M.
,
    at para. 54. The court was left with only questions, such as whether the
    trial judge thought he was only to consider the complainants evidence, rather
    than all of the evidence, or whether the trial judge had changed his view on
    the reliability of the polygraph confession. The reasons did not reveal an
    intelligible basis for the verdict, or explain how the judge could be left with
    a reasonable doubt and were insufficient for appellate review:
L.M.
,
    at paras. 1-3, 55-56.

[49]

I
    do not accept the Crowns argument. The trial judges reasons show that he addressed
    the decisive question of whether the accused's evidence, considered in the
    context of the evidence as a whole, raises a reasonable doubt as to his guilt:
Dinardo
, at para. 23. And they show that he expressly considered the
    DNA evidence and the inability of the respondent to explain it in connection
    with that very question. He found the lack of an explanation somewhat hard to
    accept and hard to believe. But immediately after making those observations,
    he explained that he found the respondents denial of wrongful conduct with
    J.C. believable or that it left him with a reasonable doubt. And he explained why
    he came to that conclusion: the respondent was not shaken from his denial in
    cross-examination; he was an unsophisticated person who told a simple,
    unsophisticated, believable story; and because it was not the respondents onus
    to provide an innocent explanation for the presence of the semen. (On the
    latter point, although the DNA evidence was corroborative of the Crowns case,
    it was not, as a confession might be, on its own conclusive. There was no
    direct evidence of how the semen was deposited on the underwear).

[50]

In
    contrast to
L.M.
, here the reasons explain the basis for the verdict,
    and do not leave open the type of questions that the reasons in
L.M.
did. The trial judge not only said he found the respondents denial credible,
    or sufficient to raise a reasonable doubt, but he explained how he reconciled
    that finding with the DNA evidence and the respondents lack of explanation,
    which the trial judge acknowledged made it somewhat hard to accept or believe
    the respondent. Moreover, the reasons explain why the trial judge was left with
    a reasonable doubt on the third branch of the
W.(D.)
analysis. They thus
    explain the basis of the existence of a reasonable doubt:
Walker
, at
    para. 2.

[51]

The 
    Crowns argument is, in essence, that its case was so powerful that an
    acquittal is inexplicable. But the legal requirement of adequate reasons is
    that they contain the trial judges explanation for the acquittal in light of
    the powerful evidence favouring conviction, in a way that permits appellate
    review. Since they provide that explanation, the ground of inadequacy of
    reasons is not available. And since the explanation provided reveals the factual
    and credibility-based determinations the trial judge made, the power of the DNA
    evidence and any frailties in the evidence the trial judge accepted go not to
    the legal adequacy of the reasons, but to the reasonableness of an acquittal.
    But that is not a ground of appeal available to the Crown. It is not the role
    of this court to substitute its views for the views of the trial judge, absent
    legal error.

[52]

The
    Crown has not shown that the way the reasons address the DNA evidence
    forecloses meaningful appellate review. When considered in the context of the
    Crowns limited right of appeal on acquittals, this ground of appeal must fail.

(b)

Did the trial judge
    err by failing to reconcile the reasons for judgment with the
Khan/Khelawon
ruling?

[53]

The
    Crown also argues that the reasons for judgment are inadequate to explain the
    divergence between the favourable view toward certain evidence that the trial
    judge expressed in the
voir

dire
ruling, and the
    diminished weight he gave to the same evidence in the reasons for acquittal.

[54]

The
    Crown acknowledges that the trial judges reasons explain why he was not
    prepared to rely on J.C.s
viva voce
testimony, the statements made to
    the paramedics, or the statements made to her mother after the allegations were
    reported. However, the Crown argues that they do not explain why he did not
    accept her initial hearsay statements to her mother and the ER nurse on July
    31, 2016, or her video statement of August 2, 2016. The trial judges findings
    of fact in admitting the complainants statements in the
Khan/Khelawon
ruling are, according to the Crown, difficult to reconcile with his conclusion
    on ultimate reliability. In admitting the statements, he found them to have
    strong indicia of reliability, including that J.C. was disinterested, that
    she lacked the sexual knowledge to fabricate, that there was no evidence of
    ideas being planted in her head, and that her statements were corroborated by
    the respondents semen in her underwear. The Crown also argues that the trial
    judges failure to address J.C.s inability to fabricate in making his ultimate
    reliability finding is all the more problematic as allegations by children have
    a particular stamp of reliability.

[55]

I
    would not give effect to these arguments.

[56]

In
    my view, the trial judge adequately explained the difference between any
    favourable comments made in deciding to admit the evidence, and his ultimate
    determination about the weight to be assigned to it.

[57]

The
    issue addressed in the
Khan/Khelawon
ruling was threshold reliability
    for the purpose of whether the evidence should be admitted. That issue is
    qualitatively different than determinations of weight and ultimate reliability.
    The latter determinations are the sole province of the trier of fact:

R.
    v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 41.

[58]

The
    trial judge made it clear that he was observing that distinction: that in the
Khan/Khelawon
ruling, he was determining threshold reliability of the evidence, and was not determining
    the weight, if any, to be assigned to it. All of the statements he made about
    the quality of the evidence in the
Khan/Khelawon
ruling were expressly
    made in that context. The trial judge expressly stated in his
Khan/Khelawon
ruling that although he was admitting the evidence, he would decide weight only
    as the trier of fact.

[59]

The
    trial judge also made it clear that it was only in the acquittal ruling that he
    needed to, and did, assess whether the hearsay statements should ultimately be
    relied on and their probative value. He explained that he had decided only
    threshold admissibility in his earlier ruling, and in the acquittal ruling, as
    trier of fact, was now deciding weight. The distinction the trial judge made is
    exactly that described in
Bradshaw
.

[60]

These
    explanations in his reasons, together with his explanations of the effect that
    the balance of the evidence had on his assessment of whether the hearsay
    statements should be relied on and their probative value, meet the requirements
    of adequacy.

[61]

I
    also do not accept the Crowns argument that the trial judges reasons were
    inadequate because, although they explained why he would not rely on some
    evidence of, and statements attributed to, J.C., he did not explain why, for
    example, he did not rely on J.C.s original hearsay statement to S.C. The trial
    judge was entitled to consider all of J.C.s evidence. He did so having
    expressly referred to the principles concerning evidence of a child witness. He
    expressed a conclusion of diminished weight with respect to all of J.C.s evidence,
    drawn from his concerns articulated about some of it. In my view, that met the
    requirement of adequacy.

[62]

I
    would not give effect to this ground of appeal.

(2)

Did the trial judge
    err by applying different levels of scrutiny to the Crown and defence evidence?

[63]

The
    Crown argues that the trial judge erred in applying a higher level of scrutiny
    to the evidence of the Crown than to that of the respondent.

[64]

The
    Crown contends that major inconsistencies in the respondents evidence were
    ignored or excused including:

·

His semen was found in the complainants underwear with no
    explanation of how it came to be there;

·

He was a self-admitted prevaricator who deceived his then-fiancée
    about the nature of his relationship with S.C.;

·

He said that he was a caring stepfather who would never harm the
    complainant, but admitted to masturbating in close proximity to her;

·

The CFS expert testified that the complainants underwear had not
    been washed, contrary to the respondents evidence that he had washed it;

·

The respondent gave inconsistent evidence about whether he engaged
    in video sex on the night in question; and,

·

The respondent claimed that he dried the complainants underwear
    on his bedroom heater in July.

[65]

On
    the other hand, the Crown argues that the trial judge was much more critical of
    the Crown evidence. He was critical of a 6-year-olds inability to answer
    questions during cross-examination, gave diminished weight to the paramedics
    evidence because they should not have engaged in a quasi-investigation (after considering
    them reliable in the
Khan/Khelawon
ruling), and was unwilling to
    accept some of the evidence of S.C.

[66]

An
    argument that a trial judge erred by applying a higher or stricter level of
    scrutiny to defence evidence than to Crown evidence is generally difficult
    because 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:
R. v. Aird
, 2013 ONCA 447, 307
    O.A.C. 183, at para. 39. What is necessary, to succeed in such an argument, is
    more than showing that different credibility assessments were made. It must be shown
    that the different assessments resulted from different standards of scrutiny
    being applied, significant enough to displace the deference due to a trial
    judges credibility assessments:
R. v. Gravesande
, 2015 ONCA 774, 128
    O.R. (3d) 111, at para. 19.

[67]

The
    Crown argues in this case that the uneven scrutiny flowed in the other
    direction  that the Crown evidence was subjected to a higher degree of
    scrutiny than that of the defence. In my view, the Crown has not succeeded in
    overcoming the high hurdle attached to this argument.

[68]

The
    first prong of the Crowns argument is that relaxed scrutiny was applied to the
    respondents evidence. But the trial judges ultimate conclusion that the
    respondents denial was believable or sufficient to raise a reasonable doubt
    does not lead to the conclusion that his evidence was not carefully scrutinized.
    The trial judge critically evaluated the respondents evidence. He characterized
    parts of it as hard to accept and hard to believe. He adverted to many of the
    points the Crown relies on  for example, the DNA evidence  but did not draw
    the same ultimate conclusion from them that the Crown sought at trial. The
    trial judge expressed a number of reasons for accepting the respondents denial
     including the fact that he was not shaken in cross-examination and told a simple,
    unsophisticated, and believable story. He reached an individualized assessment
    of the respondents evidence in light of the evidence as a whole. Moreover,
    although the Crown relies heavily on the lack of an explanation for the DNA
    evidence, the trial judge reminded himself that the respondent did not have the
    onus of providing an innocent explanation.

[69]

The
    second prong of the Crowns argument is to contrast the relaxed standard the
    Crown says was applied to the respondents evidence, which the Crown maintains
    involved forgiving inconsistencies and frailties, with the trial judges decision
    to give diminished weight to, and express reservations about, elements of the
    Crowns evidence. In my view, this prong of the argument fails. As explained
    above, I am not satisfied that the Crown has shown that the trial judge used a
    relaxed standard in assessing the respondents evidence, rather than coming to
    an individualized credibility assessment in light of all of the evidence. Nor
    am I satisfied that the trial judge used a different standard for the Crowns
    evidence. Credibility determinations are not a science and involve many
    factors:
R.E.M.
, at para. 49. The fact that different credibility
    determinations were made for different witnesses reflects that individualized
    process, and does not, in and of itself, show that different standards of
    scrutiny were used to reach those determinations.

[70]

The
    matters referred to by the Crown are more in the nature of a complaint about
    the results of the trial judges credibility assessments than about the
    standards of scrutiny used by him to reach them. These examples do not displace
    the deference due to the trial judges assessments, nor demonstrate that he was
    using a more relaxed standard of scrutiny in deciding whether to accept the
    respondents evidence than he used in assessing the Crown evidence.

[71]

Moreover,
    the comparison that the Crown proposes becomes more difficult given that the
    trial judge did not limit the basis of the acquittal to a finding that he
    believed the respondent. He also held that even if he disbelieved the
    respondent, he would have acquitted as the respondents evidence still left him
    with a reasonable doubt. It cannot be argued that, on this branch of the
W.(D.)
analysis, the trial judge was applying a more favourable standard to the
    respondents evidence  on the contrary, it is premised on disbelieving it.

[72]

I
    would reject this ground of appeal.

CONCLUSION

[73]

For
    these reasons, I would dismiss the appeal.

Released:  September 21, 2021 D.W.

B. Zarnett J.A.

I agree. David Watt
    J.A.

I agree. L.B. Roberts
    J.A.


