



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. D.G., 2021 ONCA 900

DATE: 20211217

DOCKET: C66599

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Chris Rudnicki and Arash Ghiassi, for the appellant

Jessica Smith Joy, for the respondent

Heard: November 10, 2021

On appeal from the conviction entered on November 5, 2018
    and the sentence imposed on February 8, 2019 by Justice Jamie K. Trimble of the
    Superior Court of Justice.

Pardu J.A.
:

[1]

The appellant argues that the trial judge erred
    in convicting him of sexual offences against two foster children, RY and TY, who
    were placed in his home. He was acquitted of assaults upon CSJ, another child
    placed in the home, upon SH, a girlfriend of TY, and upon his own daughter RB.

Arguments on appeal

[2]

The appellant submits that the trial judge
    misapprehended the evidence in concluding that there was no air of reality to
    the argument that the complainants had colluded with one another, and that this
    error affected both his ruling that similar act evidence was admissible to support
    the credibility of the complainants and his assessment as to whether guilt had
    been proven beyond a reasonable doubt. The appellant further submits that the
    trial judge applied uneven scrutiny as between the Crown evidence and the
    defence evidence, thereby misapplying the burden of proof. He argues that the
    trial judge rejected the defence evidence because of peripheral inconsistencies
    but forgave important contradictions in the evidence led by the Crown.

[3]

The trial judge found that the Crown had proven,
    beyond a reasonable doubt, that the appellant was guilty of the charges
    relating to RY and TY, but acquitted the appellant of the charges relating to
    the remaining three complainants. RB recanted at trial and refused to testify. Consent
    was an issue for one of the other complainants, SH, who was TYs girlfriend. CSJ
    was a belligerent witness who admitted to lying at the preliminary hearing. The
    trial judge concluded that although RYs evidence corroborated CSJs evidence
    about the religious practices in the house, this was not sufficient to dispel
    the concerns he had about the reliability of her other evidence.

[4]

The alleged offences involving RY and TY
    ultimately came to light when police contacted both girls, after CSJ made
    allegations against the appellant in July 2014.

The evidence of the complainant TY

[5]

RY and TY are sisters. TY was 22 years old when
    she testified and was 14 years old when she and her sister were placed into
    foster care in the appellants home. TY felt welcomed there and part of the
    family. After about two to three months she was introduced to the religious
    practices in the home. The appellants family hosted dinners where friends and
    family could socialize and discuss religious matters. The banquets were held
    in the basement of the home. There was a prayer room in the basement used for
    religious rituals.

[6]

At times, the appellant would act as though an
    evil spirit, Skull, manifested through him. The appellants voice and
    attitude would change when this happened. When Skull manifested, he would
    drink brandy and smoke cigarettes or cigars.

[7]

TY testified that the sexual assaults began in
    about October 2010 when she was still 15 years old. The appellant had begun to
    groom her for sexual activity, asking her if she loved and trusted him. On the
    day of the first assault, the appellant took TY to the prayer room in the
    basement and gave her a glass of brandy. As she drank it, the appellant asked
    her if she trusted and loved him. He asked if she would kill for him. She said
    yes. He told her that as a sign of her love and trust, she should remove her clothes.
    She complied. He instructed her to sit on his lap then to lie on the floor on
    her back. He removed his clothes and had unprotected intercourse with her. TY
    testified that the sexual assaults continued on a weekly basis and estimated
    that there were over a hundred instances of intercourse. About half the time, the
    appellant made her perform oral sex upon him. He purchased Plan B post-intercourse
    birth-control medication for her on three or four occasions. TY moved out in
    August 2013 and obtained her own apartment. The appellant visited her there
    five times and had intercourse with her there three times. Intercourse was
    always preceded by questions about whether she loved and trusted him.

[8]

Police contacted her in February 2016 because of
    RYs allegations. She told police only that the appellant had been handsy. In
    March 2016, TY related the extent of the sexual conduct to which she had been
    subjected and explained why she had been reluctant to reveal this earlier.

The evidence of RY

[9]

RY was 11 years old when she went to live in the
    appellants home. She felt like she was part of the family. The family opened a
    restaurant and RY worked therecleaning, painting and doing other work. She
    said she was alone there with the appellant about once a week. RY testified
    about the prayer room in the basement and stated that it was only after three
    or four months that she was allowed into that room. She also talked about the
    banquets that took place, how the appellant would summon a spirit called
    Skull, and how the appellant would then speak in a different voice. RY
    believed in the power of Skull to make things happen and observed that when
    the appellant channeled Skull, he would drink alcohol from crystal glasses and
    smoke cigars.

[10]

RY testified that after three or four months,
    her relationship with the appellant changed. When at the family restaurant, the
    appellant asked her to pull down her pants, then to suck on his nipple. She
    complied. Over the next month the sexual acts culminated in sexual intercourse
    and sexual touching. The incidents occurred in the basement, his bedroom, the
    garage or a bedroom in the basement. Again, these instances were always
    preceded by the appellant asking her if she loved and trusted him. He told her
    she could not trust anyone else and made her promise not to tell anyone about
    their sexual contacts. She was only 11 years old when the first instance of
    intercourse occurred. Vaginal intercourse at first took place once or twice a
    week, then increased to four to six times a week for the entire time she lived
    in the home. About 60% of the sexual contact took place in the home and some
    took place in the restaurant. He also had her perform oral sex upon him. The
    intercourse was unprotected. He provided her with Plan B more than ten times.

[11]

RY gave statements when police contacted her
    after CSJ made her allegations against the appellant. On July 18, 2014, July
    28, 2014 and January 6, 2016, RY denied sexual contact and denied knowledge of
    any entity called Skull. At trial she said that she lied to police in these
    earlier statements to protect her family. If she told police about the sexual
    abuse, she would lose the only real family she had ever known.

On May 9, 2016, she described to police the
    course of conduct about which she testified at trial.

The similar act evidence of CSJ

[12]

CSJ was 19 years old when she testified and was
    13 years old when she came to live in the appellants home as a foster child. RY
    and TY were already living there. CSJ testified that the appellant began to
    make sexual advances towards her after she broke up with her boyfriend. The
    appellant would call her down to the basement, tell her to lie down and then
    lie on top of her, fully clothed. On two occasions he asked her to take her
    pants down and expose her vagina. He then instructed her to pull her pants back
    up, telling her that he was interested to see if she would comply with his
    instructions. On June 22, 2014, the appellant administered a spiritual bath to
    her, involving the use of perfumed water and the breaking of eggs upon her. CSJ
    then went to a party with the appellant and RY. When they returned, the
    appellant summoned her to the basement. RY and a number of other family members
    were there. The appellant appeared to manifest an entity called Skull. The
    appellant consumed brandy and smoked cigars. The appellant appeared to bite a crystal
    glass, chew the fragments and spit them out at her. Skull said he would
    depart and the appellant would return. The others left the room. The appellant
    then told her to lie on a bed and vaginally penetrated her. She cried and
    resisted and he grew angry and told her to let him finish. He told her it was
    not rape because she let him do it and that he could now trust her. CSJ went to
    visit an aunt a few days later, described what had happened to her aunt, and
    was immediately removed from the appellants home by the
Childrens
    Aid Society
.

The appellants evidence

[13]

The appellant testified. He said he never
    touched RY, TY or CSJ in a sexual manner. He dismissed as ridiculous the
    suggestion that he would have chewed on glass at any time. He identified
    himself as a pastor and described a prayer room in the basement and the use of
    Florida watera perfumed liquid used in administering spiritual or cleansing
    baths. The purpose of the spiritual baths was to remove unclean, dirty spirits.
    He said he did speak in tongues, which occurred when the Holy Spirit arrested
    him, but said he never identified himself as Skull. There was some alteration
    of his tone of voice when he spoke in tongues. He said it was part of his faith
    to pray to Ezekiel and that his young son could not pronounce that name but
    said Skull instead. There were flags with images of skulls on them displayed
    in his house. He would cast out demons, but never smoked cigars as part of his
    religious ceremonies.

The appellants wife

[14]

The appellants wife also testified and
    indicated that she never saw any indication of sexual contact by her husband
    with CSJ, TY or RY. She largely confirmed her husbands evidence about the
    religious rites performed in the household and the prayer room in the basement.
    She did learn that her husband had spent a weekend with SH in a hotel room and
    that the two had committed sexual intercourse.

The trial judges decision

[15]

The trial judge concluded that both TY and RY
    were credible witnesses.

[16]

At para. 118 of his reasons, he noted: [TY] was
    a credible and reliable witness. She gave her evidence in a straightforward
    manner. She was thoughtful. She corrected herself quickly when she was
    mistaken. She was not shaken, on material issues, in cross-examination, in any
    significant way. She was forthright about the internal conflict she faced
    between her desire to keep the family she had with the G. family, and the fact
    she was being abused by [DG].

[17]

He reviewed potential concerns about her
    reliability and credibility, and rejected the appellants argument that TY came
    forward with a complaint in retaliation for the appellants sexual contact with
    her friend, SH.

[18]

Similarly, he concluded that RY was also a
    credible and reliable witness who had given her evidence in a straightforward
    manner: She was thoughtful. She corrected herself quickly when she was
    mistaken. She was not shaken, on material issues, in cross-examination, in any
    significant way. He reviewed the concerns expressed about her evidence by the
    defence, her adamant denial of any sexual assault in three different interviews
    with police and her initial denial of the rituals in the house, including the
    chewing of glass.


[19]

The trial judge observed that both RY and TYs
    evidence was consistent with what CSJ had to say about the spiritual baths, the
    rites used to summon Skull and what happened when the appellant channeled
    Skull. He concluded, however, that CSJ was not a reliable witness in large
    part because of her behaviour during her testimony and her admitted lying under
    oath.

[20]

The trial judge concluded that the appellant was
    an unreliable witness. He observed that his evidence was self-serving and that
    he downplayed his opportunity for contact with his foster daughters, even when
    other defence witnesses indicated he clearly had more extensive contact with
    them. His answers were generally absolute and extreme, and he contradicted
    himself about the time the children spent at the restaurant he operated. The
    trial judge found that the appellant made nonsensical assertions about his
    sexual contact with SH. He found that the appellants detailed recall of an
    evening years earlier that he described as entirely banal could not be true. He
    found that the appellants description as to how Skull came to be referred to
    in his home was tortured and contrived. He observed that the appellant had a
    motive to fabricate, beyond merely winning the case. He had an image to protect
    as a pastor and risked losing the tithes he collected. The trial judge rejected
    the appellants wifes evidence for similar reasons.

[21]

The trial judge went on to consider the
    possibility of collusion, noting that if there was collusion the similar act
    evidence would not be admissible and other evidence would be thrown into doubt.
    By collusion he meant to include conduct ranging from secret agreements to
    deceive to innocent tainting that occurs when witnesses discuss the
    allegations between themselves or discuss their evidence with the investigators
    in the presence of other witnesses. The appellant argued that RY, TY and SH
    collaborated to falsely accuse the appellant.

[22]

The trial judge rejected this collusion argument
    on the following grounds:

1.

CSJ testified that she did not speak to TY about
    what happened to her nor did TY tell her anything about what happened to TY.

2.

Although CSJ did tell RY during a lunch in
    summer 2015 that the appellant had assaulted her, and RY responded that it had
    happened to her too, the two did not share any other particulars of the events.

3.

TY did not disclose her own experiences to RY
    until shortly before the preliminary inquiry in 2016, long after CSJ and RY had
    made their allegations. The conversation occurred because both girls received a
    subpoena for the preliminary inquiry and TY inferred that RY was also a
    complainant.

4.

TY did not discuss her allegations with CSJ.

5.

RY said she knew nothing of the details of TYs
    allegations.

6.

SH had no relationship
    with RB, RY or CSJ.  She heard that CSJ was removed from the G home because she
    alleged that DG had sexually assaulted her. She never had a direct
    discussion with CSJ. The first she heard of RYs allegations was shortly before
    the preliminary inquiry when TY told SH that RY had also been summoned. SH said
    that she and TY spoke from time to time about their respective allegations
    during the course of the relationship but she never learned any details of what
    DG did.
RY only found out about SHs allegations in May
    2016 when summoned to testify at the preliminary inquiry.  She never discussed
    her allegations with TY.


[23]

The trial judge concluded that there were
    striking similarities to the assaults described by each of TY, RY and CSJ, at
    para. 152 of his reasons:

a)

The complainants are all teenage girls over whom DG stood in
loco
    parentis
or a position of trust (daughter, foster
    children).

b)

The abuse took place in a private family home, where the
    complainants ought to have felt secure, or other places in DGs control, when
    he was a supervising adult.

c)

DG allegedly groomed each complainant to be his victim by asking
    them if they loved and trusted him, by saying that he wanted them to be part of
    his inner circle which they could only do by performing acts that proved that
    he could trust them, by demanding that they perform certain high risk,
    embarrassing actions such as pulling down their pants and underwear and showing
    themselves to him.

d)

He allegedly asked each to keep the acts a secret. When TY Told BG
    in 2012 that she was having sex with DG, DG accused her of breaking his trust,
    and made her earn it again.

e)

The details of the sexual acts that DG performed or demanded of the
    three were similar.

[24]

He ultimately concluded that he would not rely
    on count to count application of similar act evidence but would rely on similar
    act evidence only in relation to his assessment of the credibility of the
    complainants.

[25]

He concluded by saying that upon application of
    the
W.D.
analysis, he did not accept the
    evidence of the appellant or his wife, accepted the evidence of RY and TY and
    found that guilt had been proven beyond a reasonable doubt in respect of those
    complainants.

Analysis of Arguments advanced by the
    appellant in his factum

[26]

The appellant makes two arguments in his factum:

1.

The trial judge misapprehended the evidence of
    collusion. His misapprehensions were material to both his similar fact ruling
    and to his ultimate assessment of the Crowns burden.

2.

The trial judge applied an uneven standard of
    scrutiny as between Crown and defence evidence, misapplying the burden of
    proof.

[27]

He submits that a new trial is required because
    of these errors.

Misapprehension of the evidence

[28]

The Crown concedes that the trial judge did
    misstate the evidence on several issues but submits that these did not amount
    to material misapprehensions.

[29]

While the trial judge found that RY did not know
    anything about the allegations made by SH, RY testified that she did know that
    there was an allegation that the appellant had taken advantage of SH, though
    she knew of no further details.


[30]

The trial judge found that RY learned about TYs
    allegations after RY was subpoenaed to court for the preliminary inquiry. RY
    testified, however, that she learned TY had sexual contact with the appellant
    during a meal when TY told her that the appellant had raped her. TY said the
    meal occurred in November 2016. RY said it was in April or May 2016
.

[31]

While the trial judge found that RY learned of
    CSJs allegations over a lunch meeting with CSJ, RYs evidence was that she
    learned about the allegations in a Facetime call in the summer of 2014. CSJ
    told RY that the appellant had called her into the basement, asked her to lie
    down and to pull her pants down. CSJ told RY that the appellant bent her over
    in a cubby hole and had intercourse with her from behind. CSJ said she tried to
    get away but the appellant wanted to finish and that she ran away upstairs.

[32]

TY testified that she never spoke to CSJ about
    the appellants conduct but that RY had told her that the appellant had
    sexually assaulted CSJ, without giving any details.

[33]

A misapprehension of material evidence can
    result in a miscarriage of justice requiring a new trial. As discussed in
R.
    v. Morrissey
(1995)
, 22 O.R. (3d) 514 (C.A.), at p. 541:

The nature and extent of the misapprehension and its
    significance to the trial judge's verdict must be considered in light of the
    fundamental requirement that a verdict must be based exclusively on the
    evidence adduced at trial. Where a trial judge is mistaken as to the substance
    of material parts of the evidence and those errors play an essential part in
    the reasoning process resulting in a conviction then, in my view, the accused's
    conviction is not based exclusively on the evidence and is not a true
    verdict. Convictions resting on a misapprehension of the substance of the
    evidence adduced at trial sit on no firmer foundation than those based on
    information derived from sources extraneous to the trial. If an appellant can
    demonstrate that the conviction depends on a misapprehension of the evidence
    then, in my view, it must follow that the appellant has not received a fair
    trial, and was the victim of a miscarriage of justice. This is so even if the
    evidence, as actually adduced at trial, was capable of supporting a conviction.

[34]

Here,
    the misapprehensions of evidence related to peripheral mattersthe time and
    place of discussions amongst the complainants. These were not important in the
    trial judges assessment of the evidence. What mattered is that generally,
    there were no discussions about the details of the alleged assaultsparticularly
    the grooming, the use of rituals, or the supply of post intercourse medications
    to prevent pregnancy. It was the striking similarities in these respects that
    made the similar act evidence compelling.

[35]

The
    allegations about SH and RB were so different in their nature and mode of
    commission that they would have had no impact on the trial judges reasoning in
    relation to the allegations involving TY and RY. The trial judge did not use
    the allegations involving SH and RB to support the credibility of TY and RY.

[36]

It
    was open to the trial judge to conclude that the evidence of TY and RY was not
    tainted by discussions with each other or with others.

[37]

His
    decision to admit the similar act evidence is owed deference. He did not reach
    an unreasonable conclusion, commit a legal error or materially misapprehend the
    evidence:
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153;
R. v. J.W.
, 2013 ONCA 89, 302 O.A.C. 205, at para. 40;
R. v.
    Creswell
, 2009 ONCA 95, at para. 7.

[38]

Moreover,
    the trial judge expressly stated that the possibility of collusion or tainting
    had to be considered both at the stage of determining the admissibility of the
    similar act evidence and when assessing whether the offence had been proven
    beyond a reasonable doubt.

Uneven scrutiny

[39]

The
    Supreme Court has expressed reservations as to whether uneven scrutiny is a
    helpful or independent ground of appeal, though it has not yet decided the
    issue:
R. v. G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 101.

[40]

A
    trial judges credibility assessments are owed significant deference. I am not
    persuaded that the trial judge here erred in the manner in which he assessed
    credibility of the witnesses.

[41]

The
    appellant submits that the number of paragraphs devoted to review of the
    evidence illustrates uneven scrutiny, with more than 70 paragraphs devoted to
    the Crown evidence and only four to the defence evidence. This is not
    emblematic of uneven scrutiny but flows from the nature of the evidence. Five
    complainants described repeated sexual assaults, while the defence evidence was
    mostly that nothing happened.

[42]

The
    appellant argues that the trial judge failed to address the unbelievable
    evidence about the appellant chewing glass. This was not, however, an essential
    element of the offence, and the trial judge did not have to finally decide
    whether that had occurred or not. Juries are often told that the evidence might
    well leave some questions about what happened unanswered, but that their task
    is to determine whether the elements of the offence have been proven beyond a
    reasonable doubt.

[43]

Similarly,
    the appellant argues that the trial judge did not address what he describes as
    the unbelievable frequency of the assaults alleged, nor the impact on the
    credibility of the complainants of their previous denials that they had been
    assaulted. The complainants could not, in this context, be expected to be
    precise about the number of times they had been assaulted and it would be inappropriate
    for this court to speculate about the normal frequency of sexual assaults. RY
    and TY explained why they initially denied that they had been assaulted. They
    did not want to lose the only family they had.

[44]

The
    trial judge was aware of these issues and concluded that RY and TY were
    nonetheless credible and reliable witnesses.

[45]

Nor
    am I persuaded that the trial judge treated the defence witnesses unfairly.
    This was a 16-day trial, with 4 days devoted to defence evidence.

[46]

As
    noted in
R. v. G.F.
, at para. 81:

Frequently, particularly in a sexual assault case where the
    crime is often committed in private, there is little additional evidence, and
    articulating reasons for findings of credibility can be more challenging.
    Mindful of the presumption of innocence and the Crowns burden to prove guilt
    beyond a reasonable doubt, a trial judge strives to explain why a complainant
    is found to be credible, or why the accused is found not to be credible, or why
    the evidence does not raise a reasonable doubt. But, as this Court stated in
Gagnon
, at para. 20:

Assessing credibility is not a
    science. It is very difficult for a trial judge to articulate with precision
    the complex intermingling of impressions that emerge after watching and
    listening to witnesses and attempting to reconcile the various versions of
    events.

[47]

While
    the trial judge mentioned the appellants obvious interest in the outcome of
    the proceedings, I am not persuaded that he placed undue weight on the status
    of a person in the proceedings as a factor going to credibility  in a manner
    that undermined the presumption of innocence:
R. v. Laboucan
, 2010 SCC
    12, [2010] 1 S.C.R. 397, at para. 11.

[48]

It
    is not disputed that the trial judge accurately summarized the law relating to
    the burden of proof and the assessment of evidence. He expressly addressed the defence
    arguments about frailties in the evidence: see para. 116 of reasons below.

[49]

I
    am not persuaded that the trial judge erred in his assessment of the
    credibility and reliability of the evidence or that he subjected the evidence
    to uneven scrutiny.

New matter raised in oral argument

[50]

In
    the course of oral argument, the appellant suggested for the first time that the
    trial judge failed to adequately consider the possibility that RYs evidence
    could have been tainted by the content of questions put to her by police. The
    appellant suggests that RY could have been so influenced by the content of the
    police questions that she incorporated that content into a later statement she
    made to police. It is suggested that this tainting could have affected both the
    ruling on admissibility of similar act evidence and the overall assessment of
    credibility. This argument was not made to the trial judge. On appeal, the
    Crown did not object to consideration of this issue.

[51]

When
    RY met with police on January 6, 2016 the police asked her the following questions:

[C]an you talk to me about the religious practices at the
    house?

What about like cleansing baths?

You know the one with the eggs. You know and then you have to
    rinse with holy water that sort of thing. While someone reads the Bible[?]

What about that room thats in the basement[,] the prayer room[?]

[E]ver have any baths that were performed on you?

[E]ver have any eggs broken on your shoulders or on your head?

You didnt get called down to the basement. [a]nd witness
    Skull come out[?]

You didnt seebiting of the glass and spitting it?

So what do you think about someone whos 50 having sex with
    someone whos 15 lets say?

[T]ell me about like when he calls himself Skull, what is that
    all about?

[52]

A
    trial judge is not required to refer to every aspect of the evidence that might
    have some impact on a witnesss credibility.  In a case like this, that could
    encompass all of the evidence.  Save for exceptional cases, it would undermine
    the work of trial judges if an appeal court were to re-assess credibility based
    on new arguments never made to the trial judge.

[53]

As
    observed in
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66:

[t]he trial judges reasons made it clear that in general,
    where the complainants evidence and the accuseds evidence conflicted, he
    accepted the evidence of the complainant.  This explains why he rejected the
    accuseds denial.  He gave reasons for accepting the complainants evidence,
    finding her generally truthful and a very credible witness, and concluding
    that her testimony on specific events was not seriously challenged. It
    followed of necessity that he rejected the accuseds evidence where it
    conflicted with evidence of the complainant that he accepted. No further
    explanation for rejecting the accuseds evidence was required.  In this
    context, the convictions themselves raise a reasonable inference that the
    accuseds denial of the charges failed to raise a reasonable doubt. [Footnotes
    omitted.]

[54]

Similarly,
    in
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 19, the
    court held that reasons are sufficient where they tell the appellant why the
    trial judge decided as he did, and:

[t]he trial judge found the complainants evidence compelling,
    the problems in her evidence inconsequential, and the appellants concoction
    theories speculative. The reasons reveal that the trial judge accepted the
    complainants evidence where it conflicted with the appellants evidence. No
    further explanation for rejecting the appellants evidence was required.

[55]

As
    noted in
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31,
    the inquiry into the sufficiency of the reasons should be directed at whether
    the reasons respond to the cases live issues. The reasons of the trial judge
    make it clear that he was alive to the issue that a witnesss evidence might be
    tainted by exposure to investigators questions: see para. 139 of reasons below.

[56]

For
    all the reasons above, and given the deference owed to a trial judges
    credibility findings, this court should not, on appeal, revisit those findings
    for several reasons. First, the questions put by the officer made only skeletal
    reference to events in the appellants household. These questions contained
    nothing close to the detail provided in the evidence of the complainants CSJ, RY
    and TY. Second, by the end of the trial, even on the appellants own evidence,
    there was no dispute that there was a prayer room in the basement, that
    religious ceremonies were performed there,  that the appellant performed
    spiritual baths on other people with some special liquid and that there was
    some reference to Skull in one form or another. The potentially suggestive
    nature of the questions put to RY by the officer was not a significant issue by
    the end of the trial, given all of the evidence that had been adduced. Third, the
    potentially suggestive questions were derived from information CSJ provided to
    police.  There was no issue of RY tainting CSJs evidence.  The possibility
    that RY could have relayed the information to TY is foreclosed by the trial
    judges finding that there was no collusion between them, by way of either
    collaboration or innocent tainting of their evidence.

[57]

In his reasons at para. 152, however, the trial judge found that
    there were persuasive similarities among the descriptions of the assaults
    given by RY, TY and CSJ.  He cited the following:

a.

DG allegedly groomed each complainant to be his victim by asking
    them if they loved and trusted him and saying that he wanted them to be part of
    his inner circle which they could only do by performing acts that proved that
    he could trust them;

b.

He demanded that they perform high risk, embarrassing actions such
    as pulling down their pants and underwear and showing themselves to him;

c.

He asked each to keep the acts a secret and this was a matter of
    trust; and

d.

The details of the sexual acts that DG performed or demanded of the
    three were similar.

[58]

None
    of this evidence pertained to any of the questions asked by the police on
    January 6, 2016.

[59]

Lastly,
    RYs and TYs statements to police, which included denials that any sexual
    assaults had occurred, were a prominent feature of the defence. The trial judge
    considered those statements.

[60]

For
    these reasons, I do not agree that the trial judge failed to adequately
    consider the possibility that RYs evidence could have been tainted by the
    content of questions put to her by police.

[61]

I
    therefore see no basis to revisit the trial judges findings of credibility in
    response to the suggestion made about the possibility that the officers
    questions tainted RYs evidence.

[62]

The
    appellant did not pursue the sentence appeal and leave to appeal sentence is
    refused.

[63]

For
    these reasons, I would dismiss the appeal.

Released: December 17, 2021 D.D.

G. Pardu J.A.

I agree, Doherty J.A.

I agree J.A. Thorburn J.A.


