Page

Indexed as:
R. v. G.G.

Between
Her Majesty the Queen, respondent, and
G.G., appellant

[1997] O.J. No. 1501

99 O.A.C. 44

115 C.C.C. (3d) 1

34 W.C.B. (2d) 309

No. C22989

Ontario Court of Appeal

Toronto, Ontario

Finlayson, Abella and Goudge JJ.A.

Heard: February 11, 1997.

Judgment: April 14, 1997.

(29 pp.)

Criminal law -- Appeals, indictable offences -- New trials -- Grounds, misapprehension of evidence.

This was an appeal by GG from his conviction on one count of assault, one count of sexual
interference and two counts of sexual assault. The complainant A was GG's daughter. In 1989 GG
was alleged to have struck A repeatedly across her backside with two pieces of plastic track after
she forged his signature on one of his cheques and presented it for payment. GG admitted to this
assault. In October 1993, sexual interference was alleged to have occurred when A claimed that GG
wiped Noxzema all over her and put his finger in her vagina. In January 1995 the first sexual assault
was alleged to have occurred when A claimed that GG forced her to take a shower and then
towelled her dry when she was naked. The next month the second sexual assault was alleged to
have occurred when A claimed that GG forced her to take a shower and to put his finger in her
vagina when he washed her. The evidence of the Crown consisted mainly of A's testimony. GG had
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five witnesses to support his denials. He asserted that A's accusations stemmed from his refusal to
place her in a foster home as she requested.
HELD: Appeal allowed in part. The conviction for the assault was upheld but the convictions for
the other charges was quashed and a new trial was ordered for them. The trial judge correctly
identified credibility as the main issue at trial. However, he erred when he determined the guilt of
GG almost exclusively upon his favourable assessment of A's demeanour, without having critically
assessed her testimony in light of the evidence as a whole. A's testimony was full of contradictions
and inconsistencies. The trial judge's finding that A gave her testimony in a straightforward manner
was not supported by the transcript. The judge also failed to consider the evidence going to motive.
Since the trial judge's treatment of the evidence was unsatisfactory the conviction was not safe.

Counsel:
Leslie Pringle for the appellant.
Dana L. Venner for the Crown, respondent.

Reasons for judgment were delivered by Finlayson J.A., concurred in by Goudge J.A.
Separate reasons were delivered by Abella J.A.
1 FINLAYSON J.A.:-- The appellant appeals from his conviction on one count of assault, one
count of sexual interference and two counts of sexual assault following a trial before His Honour
Judge Bice of the Ontario Court (Provincial Division). He also appeals from the sentences of one
month concurrent on the assault, three months concurrent on the sexual interference, three months
consecutive on the first sexual assault, and nine months consecutive on the second sexual assault,
for a total sentence of twelve months imprisonment.
Facts
2 The complainant M. is the daughter of the appellant. At the time of the trial, she was 14 years
old. She lived with the appellant, her sister A., aged 12, and her brother S., aged 9. Her mother
abandoned the family in 1985 and since that time, the appellant has had full responsibility for
raising the children.
3 The charges relate to the following four alleged incidents.

Count 1. An assault in 1989 where the appellant struck the complainant repeatedly
across the backside with two pieces of plastic track after she forged his
signature on one of his cheques and presented the cheque for payment (The
appellant admitted to the assault. He stated that it was a disciplinary
measure which went too far);

Count 2. An incident in October 1993 where the appellant wiped Noxzema cream all
over the complainant and put his finger in her vagina (the alleged sexual
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interference);

Count 3. An incident in January 1995 where the appellant forced the complainant to
take a shower and then towelled her dry when she was naked (the first
alleged sexual assault); and

Count 4. An incident in February 1995 where the appellant forced the complainant
to take a shower and put his finger in her vagina while he washed her (the
second alleged sexual assault).

4 The evidence of the Crown consisted chiefly of the testimony of the complainant. The Crown
also called Darlene McKenzie of the Children's Aid Society and Constable Pearsall of the O.P.P.
The evidence of the defence consisted chiefly of the testimony of the appellant. In addition, the
defence called a total of five other witnesses: the appellant's mother, the sister A., the brother S.,
Catherine England from Child and Family Services and L.F., the appellant's neighbour.

Count 1: the assault

5 The appellant took no serious issue with this conviction on appeal.

Count 2: the "Noxzema incident"

6 The complainant testified that in October 1993, the appellant forced her into his bedroom and
demanded that she take off her clothes. He then wiped Noxzema cream all over her body and
digitally penetrated her. She testified that she was screaming during this incident and that her sister
A. heard this. After the incident, she told her sister A. that "Dad just wiped Noxzema all over me
and he stuck his finger up me". Darlene McKenzie testified that she was told about the Noxzema
incident by A.
7 The appellant denied that the Noxzema incident occurred. He claimed that there had not been
Noxzema cream in the house since 1992. A. testified that she had no recollection of the incident and
heard no screaming on the night in question. A. denied that the complainant told her about the
incident and also denied that she ever told Darlene McKenzie about it.

Count 3: the "first shower incident"

8 The complainant testified that in January 1995, the appellant forced her to take a shower. She
stated that this was an unusual demand because the appellant knew that she was afraid of taking
showers. After entering the bathroom, she blocked the bathroom door with an open drawer. She
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proceeded to take a shower in a bathing suit and shorts. While she was showering, the appellant
peeked in and threatened to break down the door if she did not let him in. Once inside, he told her to
remove her bathing suit and shorts. He then brought her to his bedroom, forced her to bend over his
bed and dried her off with a towel. In drying her off, he touched her chest but did not touch any
"private parts".
9 The appellant denied that the first shower incident occurred. He testified that he did not know
that the complainant was afraid of showers and that in fact, she took showers all the time. He stated
that the open drawer made it impossible for him to peek in while she was showering. For the last
three or four years, he has not been in the bathroom when the complainant was showering or
bathing.

Count 4: the "second shower incident"

10 The complainant testified that in February 1995, her father took her into the bathroom,
demanded that she take her clothes off, forced her into the shower and had her assume a certain
position. He then soaped her up and washed her chest area, stomach, backside, butt, legs and
vagina. During the washing, he digitally penetrated her. She screamed but admitted that she was not
really in pain. After the shower, he dried her off, took her into his bedroom and put her in his bed
while she was still naked. The entire incident lasted for 25 minutes. The appellant denied that this
incident occurred. The events of February 16, 1995
11 The complainant testified that on the evening of February 16, 1995, a week or two after the
second shower incident, she was home alone with the appellant when she noticed that he was
"staring" at her in a way which caused her to fear that he was about to do something to her. She ran
to the home of a neighbour, L.F., and from there, called the police. Constable Pearsall responded to
the call. He testified that when the appellant arrived at the F. house for his daughter, the
complainant screamed and crouched under the kitchen table. Mrs. L.F. testified that the complainant
was "panicky" and did not want to see her father. Both Constable Pearsall and Mrs. L.F. testified
that on February 16th, the complainant made no mention of the sexual assaults.
12 The trial judge convicted the appellant on all four counts. He held that the case was to be
decided on the issue of credibility. On the issue of credibility, he stated: "I do not believe the
accused when he denies admitting [sic committing?] these incidents and I accept the version of the
complainant." The reason why he found the complainant to be more credible is summarized in the
following excerpt from his reasons for judgment:

The accused's evidence is the denial of all the incidents that were outlined by
M.M., on the other hand, gave her story as to the incidents in a straightforward
manner and had a ring of truth to her story. [Emphasis added.]
13 The trial judge also cited the following factors as supporting the truth of the complainant's
story:

1. She did not allege more extensive sexual abuse although she could have. She was
able to provide details about the assaults.
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1. The various incidents are consistent with a progressive series of contacts aimed
at getting the complainant used to the idea of his touching her.
1. The appellant was not the complainant's natural father so it may be that he felt
that he could sexually assault her.
1. Her panicky reaction to her father's arrival at the F. house.
1. The nature of a parent-child relationship explains why the complainant did not
report the abuse earlier.
Analysis
14 The trial judge was correct in identifying credibility as the main issue at trial. Regrettably,
however, he fell into the error of determining the guilt of the appellant almost exclusively upon his
favourable assessment of the complainant's demeanour without embarking upon any critical
assessment of her testimony in the light of the evidence as a whole. While he set out the evidence of
the appellant, he did not evaluate the reliability of the complainant's testimony in light of it.
15 The approach taken by the trial judge has been criticized by this court. In R. v. Norman
(1993), 87 C.C.C. (3d) 153 (Ont. C.A.), the issue was whether the trial judge had erred in convicting
the accused where the trial judge was impressed by the complainant's demeanour on the stand but
where the accused had presented contradictory evidence and had revealed inconsistencies in the
Crown evidence. The accused in that case was charged with a single act of rape alleged to have
occurred 18 years prior to the charge. The charge was laid following a recovered memory of the
assault by the complainant while in the course of therapy for other sexual assaults committed on
her. The trial judge found the complainant to be the more credible witness on the basis that she was
"straightforward and stood up well in cross-examination." He did not, however, evaluate her
testimony to determine its reliability. For example, he did not consider her testimony in light of
independent witnesses who saw her on the night of the alleged rape and noticed nothing unusual. He
did not consider the fact that some of her own testimony as to the clothes the accused was wearing,
the car he was driving and the description of the accused's penis were contradicted by other
testimony. Further, he did not evaluate her testimony in light of expert testimony to the effect that
persons with recovered memory could honestly and sincerely believe assaults had occurred where
they had not in fact occurred.
16 This court set aside the conviction. Speaking for the court, I stated at p. 173:

I do not think that an assessment of credibility based on demeanour alone is good

enough in a case where there are so many significant inconsistencies. The issue is
not merely whether the complainant sincerely believes her evidence to be true; it
is also whether this evidence is reliable. Accordingly, her demeanour and
credibility are not the only issues. The reliability of the evidence is what is
paramount.
I explained the nature of the trial judge's error at p. 172:

He gave a limited analysis of the evidence and relied principally upon his
observations of the complainant and the Crown's principal witness, B.G., to make
his findings of credibility in their favour. There was no attempt to reconcile
inherent discrepancies in both of their testimonies or to resolve the significant
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contradictions between their evidence and that of the few independent witnesses
who had some memory of this particular corn roast.
17 In R. v. S.(W.) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.), (leave to appeal to the Supreme Court
of Canada dismissed December 8, 1994), the same issue was raised as in R. v. Norman. The
complainant had alleged that when she was between the ages of 9 and 13, her uncle committed
repeated sexual assaults on her during her visits to his farmhouse. The accused testified and denied
the charges against him. Defence witnesses testified and provided evidence to show that the accused
would not have had the opportunity to commit the assaults as described by the complainant. The
complainant admitted that during the period that the sexual assaults were allegedly occurring, she
continued to ask her parents to allow her to spend nights at her uncle's farm and she conveyed the
impression that she really enjoyed her visits. Despite the contradictory evidence and inconsistencies
in the complainant's own evidence, the trial judge found the complainant to be the more credible
witness based on her demeanour on the stand.
18 This court set aside the conviction finding that the trial judge had erred in convicting on a
positive finding of credibility based on demeanour where there was significant evidence
contradicting the complainant's allegations. On behalf of the court, I stated at p. 250:

It is evident from his reasons that the trial judge was impressed with the
demeanour of the complainant in the witness-box and the fact that she was not
shaken in cross-examination. I am not satisfied, however, that a positive finding
of credibility on the part of the complainant is sufficient to support a conviction
in a case of this nature where there is significant evidence which contradicts the
complainant's allegations.
I stated further at p. 253 that the trial judge should have been more critical of the complainant's
testimony:

The trial judge in the present case gave full reasons and he recited the evidence
accurately. He also referred to the appropriate authorities. I cannot say that he
misdirected himself in a material way. His overall approach to this particular
case, however, was wrong. Instead of questioning the veracity and accuracy of
the witnesses who, because of the nature of the charge, were called to support a
negative, he should have been more critical of the complainant who put forward
the affirmative that the offences took place.
19 I want to be clear that my concern on this appeal is not that the trial judge has simply failed to
give adequate reasons for finding the complainant to be the more credible witness. A trial judge
does not err simply because he or she does not give reasons for deciding one way or the other on
problematic points: R. v. Burns, [1994] 1 S.C.R. 656. However, if reasons are given and they
indicate that the trial judge misapprehended the evidence or the law, then this is a reversible error:
R. v. McMaster, [1996] 1 S.C.R. 740, per Lamer C.J.C. at pp. 750-52. Here, the reasons disclose
that the trial judge found the complainant to be more credible based on her demeanour and
convicted on this basis. This was an error in light of the contradictory evidence presented by the
defence and in light of the inconsistencies in the complainant's own testimony which he failed to
address.
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20 As I have summarized in my review of the facts, the allegations of the complainant were
contradicted in important respects by five different witnesses. The appellant testified in his own
defence, he called his mother, his two other children and a neighbour, all of whom, to the extent that
they were able, supported his protestations of innocence. It is not necessary, at this point, to repeat
the substance of these witnesses' testimony. Suffice it to say that in the face of the contradictions
and inconsistencies, the trial judge should have critically evaluated the complainant's evidence
rather than simply accepting it as reliable because she gave her testimony in a straightforward
manner.
21 To compound the error, the trial judge's finding that the complainant gave her testimony in a
straightforward manner and that her story had a ring of truth to it, is hardly borne out by my reading
of the transcript. There were several significant inconsistencies in the evidence of the complainant
which make such an assertion unreasonable. For example, at several points in her testimony, the
complainant stated that fear of the appellant and what he would do to her lead her to submit to his
sexual assaults. Yet, when asked whether specific acts of prior mistreatment to her and her siblings
affected how she reacted to him when he assaulted her, she answered no. The complainant was able
to provide minute details of the shower incident and this clearly impressed the trial judge. Yet, on
cross examination, she became confused about whether the position she was put in during the
Noxzema incident was similar to that in the first or second shower incident. The complainant
allegedly told A. about the Noxzema incident right after it occurred. However, Darlene McKenzie
testified that when she confronted the complainant about the Noxzema incident in October of 1993
in the presence of A., the complainant denied that it occurred despite the urging of A. who reminded
her of their earlier conversation. As I have earlier noted, A. testified and denied that the complainant
had told her about the Noxzema incident. Again, the complainant stated that on the night of
February 16, 1995 when she went over to the L.F. house, she did so for the purpose of reporting the
sexual assaults. However, on that evening, when Mrs. L.F. asked her what was wrong, she made no
mention of the sexual assaults. When Constable Pearsall arrived, she had the opportunity to report
the sexual assaults but said nothing. The complaint to the authorities was not officially made until
February 20.
22 These were serious inconsistencies in the complainant's testimony and seriously challenge the
assertion that she gave her evidence in a straightforward manner. Further, her explanation
exculpating herself and blaming her six year old sister in the cheque forging incident that led to the
disciplinary whipping described in count 1 was bizarre and hardly had a ring of truth to it. It should
have alerted the trial judge to take a cautious approach to her other testimony.
23 The trial judge also failed to make any mention of the evidence which disclosed a possible
motive for the complainant to lie as to what took place. The complainant wanted to be put in a
foster home. She was unhappy at home, admitting at one point in her testimony that she never liked
the appellant and in fact disliked him. The Children's Aid Society had an application to put her in a
home which was scheduled to be heard on February 20, 1995. Her father was actively opposing it.
As a result of the allegations, she would be able to leave the family home. This evidence of possible
motive was very relevant in determining the reliability of her testimony.
24 The trial judge did cite five factors as supporting the truth of the complainant's testimony.
However, these factors were either neutral, irrelevant or unsupported by the evidence. I would like
to deal briefly with each of them in turn:
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1. The allegations of abuse were not as extensive as they could have been. The
complainant was able to provide details about the assaults.
25 The trial judge stated:

If [the complainant] was making up stories of sexual assaultive behaviour, she

could have alleged more extensive sexual abuse each time. Her details of the
incidents add to the credibility, such as stating that the father took off his watch
and glasses, set them on the toilet in the February shower incident.
26 The first part of this statement is troubling. The recognition by the trial judge that the
complainant was in a position to have alleged more serious crimes should have given him no
comfort at all. This circumstance does not enhance the veracity of the accuser: it emphasizes the
vulnerability of the person accused. Secondly, the reference to insignificant details of the appellant's
conduct in taking off his watch and glasses is neither supportive of the commission of a crime or the
appellant's involvement in it. If anything, the complainant's ability, in examination-in-chief, to
remember with such detail the circumstances surrounding the two shower assaults makes her
confusion during cross-examination as to the assaults themselves that much more disturbing.

1. The various incidents are consistent with a progressive series of contacts aimed at
getting the complainant used to the idea of his touching her.
27 The trial judge found that:

The various incidents show a picture of a progressive series of contacts with the
girl as if feeling his way to get her used to the idea of his touching her. She
admits not making complaints earlier and states why. She became increasingly
concerned from the looks he gave her. In particular, to use her words, "the same
looks" when she was alone with him on the 16th of February, the day she took
off and ultimately made her complaints.
28 With respect, having regard to the limited number and fleeting nature of the sexual touchings
over a period of sixteen months, it can hardly be said that they demonstrate a progressive series of
contacts. Moreover, the statement that the appellant was attempting to get the complainant used to
the idea of his touching her suggests that his motive was one of sexual gratification and contradicts
the theory of the Crown that, in part at least, the shower activities were a form of discipline.

1. The appellant was not the complainant's natural father so it was more likely that he
would have assaulted her.
29 The trial judge stated:

The accused was in a position of trust and power over her as a parent. Because
she was not his natural child, the question arises, did he feel he could do these
things to her?
30 The question whether the appellant was the natural father of the complainant was clearly
irrelevant to the issue of whether the abuse occurred. While the issue of a lack of a biological
relationship was raised by two witnesses, this point was not developed by the Crown for any
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purpose, and certainly not to prove that a step-father was more likely than a natural father to commit
the sexual assaults. This insinuation that the appellant was more likely to abuse the complainant
because she was not his natural child was totally unjustified.

1. The complainant's panicky and fearful reaction to her father's arrival at the F. residence
indicates that she had been sexually abused
31 The trial judge noted that

[the complainant's] reaction to her father in front of the police officer and Mrs.
L.F. also corroborate her story.
32 The fearful reaction of the complainant on this occasion is definitely a neutral factor. It in no
sense supports, much less corroborates in law, the complainant's story respecting the alleged sexual
incidents. The complainant's fear of her father was equally consistent with apprehension that he
would physically discipline her as he had in the past with the plastic tracks. This explanation for her
fear is particularly plausible when considered in light of the complainant's behaviour just prior to
running to the F. house. On February 15, 1995, she had been called into the vice-principals office
because of missed classes and failing grades. Her father and a representative of the Children's Aid
Society were present at the meeting. At that time she had been suspended from riding on the school
bus. She had new clothes which her father suspected she had stolen. Additionally, there were
unexplained long distance charges on the family phone and her father suspected that she had made
the calls. Finally, she left the house in the middle of the night without telling her father. Certainly,
any of the preceding would have warranted discipline of some sort by the complainant's father and
it is certainly possible that it was this discipline which the complainant feared when the appellant
arrived at the F. house.
33 Since her panicky reaction to the sight of her father is equally consistent with fear of physical
discipline as fear from having been sexually assaulted, the trial judge should not have attributed
probative or corrobative value to it in support of only one of the explanations. See: R. v. Arcangioli
(1994), 87 C.C.C. (3d) 289 at 300-301 (S.C.C.); R. v. M.(A.W.), [1993] O.J. No. 901, a judgment of
the Ontario Court of Appeal released April 16, 1993. To suggest that her fear of her father when he
came to the neighbours to pick her up related to the sexual incidents is to give an impermissible
meaning to the term corroborate.

1. Taking judicial notice of the nature of a parent-child relationship explains why the
complainant did not report the abuse earlier.
34 On this point, the trial judge stated:

As to her not making complaints earlier, I can take judicial notice and do so, of
the position of a child in a parent child relationship. Their fear of the parent, their
fear of not being believed, their fear of upsetting the family unit, their
embarrassment and in many instances, their unwarranted feelings of guilt. These
are some of the reasons why these young children do not complain.
35 The trial judge provided no authority to justify taking judicial notice of the nature of the
relationship between a parent and a child and how this would explain late disclosure of sexual
assault. Some have argued that it is improper to take judicial notice that delay in reporting
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childhood sexual assault is common. For example, in his article "Questioning the New Orthodoxy
of the Proper Approach to Child Witnesses" (1993), 17 C.R. (4th) 305 at 312, M. Naeem Rauf
stated:

The "knowledge" that victims of abuse do not disclose it or, if they do, do so only
after a long passage of time is not so generally known and accepted that it cannot
be reasonably questioned. That may be the received or politically correct opinion
at this time, but it is certainly not so notorious that it can be accepted without
proof.
36 On the other hand, the Supreme Court of Canada has recognized that delay in reporting in
cases of sexual abuse is common. In R. v. L.(W.K.), [1991] 1 S.C.R. 1091 the issue was whether
charges of sexual assault should be stayed on the ground that a thirty year delay in advancing a
complaint resulted in a denial of fundamental justice. The accused in that case had made a motion at
trial to stay proceedings related to charges of sexual abuse of his daughter and step-daughters
stemming back to 1957. The trial judge granted the stay but this was set aside on appeal and a new
trial was ordered. The Supreme Court of Canada dismissed a further appeal. Stevenson J. writing
for the court stated:

It is well documented that non-reporting, incomplete reporting, and delay in

reporting are common in cases of sexual abuse. The 1984 Report of the
Committee on Sexual Offences Against Children and Youths (the "Badgley
Report"), vol. 1. explained at p. 187 that:

"Most of these incidents were not reported by victims because they felt that
these matters were too personal or sensitive to divulge to others and
because many of them were too ashamed of what had happened."
See also: Gilles Renaud, "Judicial Notice of Delayed Reporting of Sexual Abuse: A Reply to Mr.
Rauf", 20 C.R. (4th) 383.
37 To the best of my knowledge, no court in Canada has gone as far as to state that a trial judge
may take judicial notice of the fact that delay is common in cases of childhood sexual assault. (But
see: R. v. E.K.R., a decision of the Manitoba Court of Appeal released April 21, 1992, [1992] M.J.
194 per Helper J.A. in dissent). The Crown continues to tender evidence at trial to explain delays in
reporting of childhood sexual abuse: See: R. v. R.K.N., a decision of the Ontario Court of Appeal
released February 25, 1997, [1997] O.J. 705, R. v. B.(F.F.) (1993), 79 C.C.C. (3d) 112 (S.C.C.). We
must exercise caution in taking the comments of Stevenson J. to justify taking judicial notice. His
comments were made in a context very different than the context in which the trial judge was taking
judicial notice. Stevenson J. was not attempting, in the context of a trial, to explain why the
complainant delayed in reporting sexual abuse. Rather, he was attempting to justify his conclusion
that a motion for a stay of charges should not be granted even where there had been a thirty year
delay in reporting the charges.
38 However, putting aside the question of whether a trial judge can properly take judicial notice
that delay is common in cases of childhood sexual abuse, I think that another important question
which must be asked is whether the generalization applies on the facts of this case. I note that the
complainant had not been reluctant to complain earlier about the physical assault upon her.
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Obviously, sexual assault and physical assault are different and the mere fact that she would report
the physical assault does not mean that she would report the sexual assault. However, the fact that
she was willing to report the physical abuse is some evidence that she was not overly concerned, as
the trial judge suggested, about embarrassing her family or causing the break-up of the family.
39 Apart from his misplaced reliance upon the five points I have dealt with in detail above, in my
view, the trial judge's reasons also disclose that he misapprehended or ignored relevant evidence at
several other points. For example, he stated:

M. gave further evidence as to her father coming in to her bedroom on more than
one occasion when she was asleep or she pretended she was asleep, and bent over
her. She says that she usually placed a number of bags between her bed and the
door so that she could hear him come in. She could hear the noise of the bags
[emphasis added].
40 Despite the best efforts of counsel for the Crown to demonstrate otherwise, the record does not
support this statement. The complainant had blocked the path from her bedroom door with bags to
where she was sleeping to determine if anyone was coming in while she was asleep. At trial, it was
unclear whether the path was blocked before or after the alleged sexual assaults. However, what
was clear is that the appellant came into her bedroom just once and left when she woke up and sat
upright. The incident is a non-event in a domestic setting. However, the trial judge's
misapprehension of this evidence went to support his theory of a sinister pattern of conduct by the
accused.
41 Finally, and perhaps most significantly, the trial judge clearly misapprehended the evidence of
the complainant regarding the second shower incident. On two occasions, he stated that the duration
of the digital penetration was some twenty-five minutes whereas the complainant herself admitted
that the appellant stuck his finger up "fast". What the complainant actually said was that the entire
incident lasted for about twenty-five minutes (the evidence did not disclose the duration of the other
alleged incidents). This was a serious error. The Crown at trial categorized this last incident as a
minor assault. The trial judge's theory was that the evidence disclosed a series of assaults escalating
in their gravity. By mischaracterizing the second shower incident as involving twenty-five minutes
of digital penetration, the trial judge was able to make it a major event and cause it to conform to his
theory. The trial judge's mischaracterization of the second shower incident was compounded by his
confusion about the time between it and the time when the complainant ran to the F. house. He
stated that the two incidents were separated by a few days whereas the complainant herself testified
that she ran to the F. house a week or two after the second shower incident. Combined, these two
errors with respect to the evidence suggested a connection between the flight and the sexual assault
which the evidence does not support.
Conclusion
42 In all the circumstances, I am of the opinion that the trial judge's treatment of the evidence was
unsatisfactory and the conviction that resulted is not a safe one. The trial judge erred in basing the
conviction on the complainant's demeanour without critically evaluating her evidence in light of
significant contradictory evidence and inconsistencies in her testimony. The trial judge erred in
finding support for the truth of complainant's allegations in factors which were irrelevant, neutral or
unsupported by the evidence. Finally, the trial judge's reasons for judgment disclose that he
misapprehended or ignored key aspects of the evidence. There must be a new trial.
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Disposition
43 Accordingly, I would allow the appeals respecting the convictions for the sexual interference
and the two sexual assaults, quash those convictions and order a new trial for these charges. I would
dismiss the appeal from count 1, the assault conviction. In the circumstances, it is not necessary for
me to deal with the appeal against sentence with respect to counts 2, 3 and 4. With respect to the
sentence of one month for the assault, I find that it was fit and proper in the circumstances and see
no basis for altering it. Leave to appeal sentence on count 1 is granted, but the appeal is dismissed.
FINLAYSON J.A.
GOUDGE J.A. - I agree.
44 ABELLA J.A.:-- I have had the benefit of reading my colleague's reasons, but am unable to
agree with his conclusions. This case was, as the trial judge correctly indicated, a matter of
credibility. Accordingly, the trial judge's credibility findings are entitled to presumptive deference:
R. v. Chevrier, [1993] 2 S.C.R. 226; R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.); R. v. Francois
(1994), 91 C.C.C. (3d) 289 (S.C.C.). This does not mean that appellate review precludes reviewing
and re-weighing the evidence, but this task is to be undertaken "only for the purpose of determining
if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the
trier of fact could reasonably have reached the conclusion it did on the evidence before it" (R. v.
Burns, supra, at p. 199). Having reviewed the evidence, I do not share the majority's view that there
were serious errors undermining the integrity of the conviction.
45 The trial judge was, from his reasons, alert to the inconsistencies in the evidence. While he did
not delineate all of them, his reasons reflected an understanding of his task, and any errors he made
were far from fundamental.
46 His allusion, for example, to the possibility that the appellant was not the complainant's
natural father, particularly in light of the other references in his reasons to the appellant as the girl's
"father" or "parent," is puzzling. But the comment appears to be made only as a casual observation,
and is nowhere tied to the suggestion that it affected the trial judge's assessments of credibility or
the evidence.
47 He was also clearly in error when he indicated that the digital penetration itself, rather than the
entire shower incident, lasted 25 minutes. This may have been a slip or a misunderstanding of the
evidence, but it appears not to have affected his analysis as to whether the shower incident occurred
in the first place.
48 Nor, with respect, do I view the trial judge's common sense observations about the parent-
child relationship as either inappropriate or, for that matter, erroneous. He does not rely on the
observations to bolster the child's evidence; he uses them to explain why, in this case, the delay in
disclosure is either neutral or irrelevant. In my view, a trial judge is entitled - even obliged - to take
judicial notice of a child's reality in understanding the nature or timing of children's disclosures. We
cannot ignore that we are dealing with uniquely vulnerable victims whose status as children is a
dependant one, made even more fragile when they are children of the alleged abuser. The
allegations cannot be assessed in the same way as those of an average adult victim because the
implications of a child's disclosure, given his or her complete social and economic dependency, may
be more cataclysmic than those of an adult, especially if the target of the disclosure is a family
member. This does not argue for an automatic acceptance of every child's disclosure. It argues
against an automatic rejection or suspicion of its reliability because when or how it was made
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appears counter-intuitive to an adult. The circumstances of each case should determine whether a
particular disclosure is inherently suspect, not the fact of delay.
49 In this case, the trial judge accepted the complainant's version despite the evidence of possible
motive and despite the appellant's denials. He based his conclusion on the evidence of the
complainant, of the social workers, of the neighbour to whom the complainant ran on February 16,
1995, and of the police officer who described the girl's "strong reaction" to her father's arrival at the
neighbour's by screaming, shaking, and crouching under the kitchen table. He did not merely rely
on the demeanour of the complainant, although this obviously and properly affected his
conclusions; rather, he had before him an unfolding narrative, told through the observations of
witnesses whose evidence in essence he accepted, and whose evidence reasonably supported his
conclusion.
50 As a general rule trial judges have no duty to "demonstrate in their reasons that they have
completely appreciated each aspect of relevant evidence" (R. v. Burns, at p. 200; R. v. Barrett
(1993), 82 C.C.C. (3d) 266 (Ont. C.A.); R. v. Morrissey (1995), 97 C.C.C. (3d) 193), and a trial
judge "does not err merely because he or she does not give reasons for deciding one way or another
on problematic points" (R. v. Burns, at p. 199). In light of these observations in Burns, I have some
difficulty discounting a trial judge's findings of credibility whenever inconsistencies in the evidence
exist. Burns itself was a case where the inconsistencies in the evidence led the Court of Appeal to
interfere with the trial judge's credibility findings, and resulted at p. 199 in the following corrective
direction from the Supreme Court of Canada:

The judge is not required to demonstrate that he or she knows the law and has
considered all aspects of the evidence. Nor is the judge required to explain why
he or she does not entertain a reasonable doubt as to the accused's guilt. Failure
to do any of these things does not, in itself, permit a court of appeal to set aside
the verdict.
51 The trial judge's role as listener and observer is a crucial and exceptionally sensitive one. We
would be rendering it redundant if we substituted our own view as to whether the trial judge ought
to have believed a particular witness or given a particular inconsistency greater emphasis. In R. v.
Jacquard, [1997] 1 S.C.R. 314, (Supreme Court of Canada, released February 20, 1997), Chief
Justice Lamer, describing the limits of the appellate role in examining jury charges, stressed the
need to look at the charge as a whole, and take a "functional" rather than an "idealized approach" to
reviewing a judge's charge (R. v. Jacquard, supra, at p. 16). The test for a reviewing court is, the
Chief Justice concludes, to examine whether the jury "understood not only the legal issues at trial,
but also how the evidence related to those issues" (R. v. Jacquard, supra, at pp. 30-31). Surely, the
same test is applicable in reviewing the trial judge's reasons and adds another pragmatic layer to the
"Burns trilogy" (R. v. Burns; R. v. Chevrier; R. v. Francois, supra).
52 In my view, looking at the reasons as a whole, the trial judge understood the legal issues
before him and properly related the evidence to the issues. The evidence was reasonably capable of
supporting the trial judge's conclusion with respect to credibility and the reasons disclose no serious
misappreciation of the evidence or the applicable law.
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53 Accordingly, I would dismiss the appeal against conviction. Nor, in the circumstances, do I
see any error in the sentence imposed. I would grant leave to appeal sentence, but dismiss the
sentence appeal.
ABELLA J.A.
qp/qi/d/mmr/mjb/qlhjk
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