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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.H., 2020 ONCA 405
DATE: 20200623
DOCKET: C66510
Simmons, Pepall and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
E.H.
Appellant
Nader R. Hasan, for the appellant
Lisa Fineberg, for the respondent
Heard: February 5, 2020
On appeal from the conviction entered on October 4, 2018 by Justice Paul T. O’Marra of the Ontario Court of Justice.
Trotter J.A.:
A. introduction
[1] The appellant was found guilty of two counts each of sexual assault (Criminal Code, R.S.C. 1985, c. C-46, s. 276) and sexual interference (s. 151) against the two young daughters of his former girlfriend. The allegations relate to events in 2002 to 2004.
[2] At the time of trial,[1] V.M. was 28 years old and testified about events when she was 12 to 14; whereas W.M.(1) was 23 and reported being abused by the appellant when she was 6 to 8. They both claimed that the abuse occurred in their respective bedrooms when the appellant stayed overnight at their house. The appellant testified and denied the allegations.
[3] In lengthy reasons for judgment, the trial judge accepted the evidence of both complainants and was satisfied beyond a reasonable doubt of their allegations. He made detailed credibility findings. The trial judge disbelieved the appellant and rejected his evidence, finding that it did not raise a reasonable doubt.
[4] The appellant advances numerous grounds of appeal. The common thread that runs through them is an attack on the trial judge’s credibility findings. The appellant essentially asks this court to re-try the case on a paper record. I would not accede to this request.
[5] The trial judge’s findings were supported by the evidentiary record. He explained how he reached his conclusions with respect to each witness. The appellant has identified no errors that would displace the deference to which the trial judge’s reasons are entitled on appeal.
B. factual background
[6] In this section, I provide a brief summary of the evidence at trial. More detail is provided below as necessary in the discussion of specific grounds of appeal.
(1) Introduction
[7] W.M. is the mother of both complainants, V.M. and W.M.(1). W.M.(1) has a twin brother. The three children lived with their mother after she separated from her previous husband.
[8] W.M. met the appellant shortly after the separation. The appellant worked at a convenience store close to W.M.’s house. He came to Canada from Iraq, where most of his family remained. In addition to working, the appellant attended college.
[9] W.M. frequently took her children to the store where the appellant worked to buy them candy. The appellant and W.M. eventually started to have a relationship. After a few months, the appellant occasionally stayed overnight at W.M.’s house but maintained his own residence. The frequency of his overnight visits was contentious at trial.
[10] The relationship between the appellant and W.M. lasted about two years. They had different ideas about the nature of their relationship. W.M. wanted a committed relationship, while the appellant was content with something more casual. He was concerned that his family, for cultural reasons, would never fully accept W.M. When the relationship ended, W.M. was deeply disappointed.
[11] As discussed in more detail below, the appellant’s relationships with V.M. and W.M.(1) were very different. Whereas W.M.(1) liked the appellant and got along well with him, V.M. did not; their relationship was fraught and conflictual.
(2) The Allegations of V.M.
[12] V.M., the older of the two girls, was initially wary of the appellant because he was the first person their mother dated after her marriage ended. V.M. did not have a good feeling about the appellant when he first came into their lives.
[13] In 2002, V.M.’s bedroom was on the bottom level of what was described as a five-level, split-level home. This bedroom had been converted from an office. Everyone else slept on the top floor of the house.
[14] The first time the appellant came into V.M.’s room at night he lay down on her bed beside her, scratched her back, and stroked her hair. V.M. could feel the appellant’s erection against her buttocks and described a “dry humping” motion. As things progressed, he touched her breast area under and over her bra. He also put his hand under V.M.’s underwear and touched her buttocks. On some occasions, the appellant did this while he was on top of V.M. The incidents lasted about 45 minutes on average.
[15] V.M. was unsure about how often the bedroom visits occurred. In her police statement, she said that it happened two to three times a week. At trial, she testified that it happened, “Too many times to count. It became a regular thing.” In cross-examination, she agreed with the suggestion that the appellant came to her room about twice a week, both during the week and on weekends. In terms of the number of times the appellant stayed over, V.M. disagreed with her mother that it was only once a week or once every second week.
[16] V.M. agreed that she was rude to the appellant, but not all of the time. She called him a “douchebag”. It was suggested to V.M. that she made fun of his accent, disliked the food he cooked, and once told him to go back to where he came from. She said that she did not have a specific memory of these things because it happened so long ago, “but I’m not going to say I didn't say it”. At one point in her testimony she said, “Again, I don't have a memory of it, but I didn’t like him and I don’t think I was the nicest and I probably said some hurtful things.” V.M. explained that she disliked one of the spices he used to cook and she reported having misophonia – a negative, emotional reaction to certain sounds, such as the sound of people eating or chewing their food.
[17] Although V.M. was admittedly rude towards the appellant, she testified that she did not have a good relationship with her mother. She felt helpless and did not think that her mother would believe her if she disclosed what was happening. V.M. was pleased when her mother and the appellant broke up.
(3) The Allegations of W.M.(1)
[18] W.M.(1) testified that, when she met the appellant, he seemed nice and she did not have any negative feelings towards him. Her views changed when he touched her in a sexual manner. W.M.(1) said that the appellant came into her bedroom at night, which was on the same level as her mother’s bedroom. She remembered it happening four times. He stayed for about five minutes each time. W.M.(1) testified that the appellant touched her below her waist, including her vagina, and sometimes her buttocks after pulling her pyjama bottoms down. She was scared and confused but did not tell anyone because she did not understand what was happening. W.M.(1) was about six years old at the time.
[19] There were inconsistencies between her testimony and her 2010 statement to the police in terms of precisely what the appellant did to her. She also told the police that it sometimes felt like it was “just a dream”. However, at trial she repeatedly asserted that the sexual abuse was real.
[20] W.M.(1) testified that the appellant stayed over once or twice a week.
(4) W.M.’s Evidence
[21] W.M. did not witness any of the conduct or activity alleged by her daughters. However, she was able to provide context on some issues.
[22] W.M. described her relationship with the appellant in positive terms. She was in love with him and was disappointed when the relationship ended. She now looks at the relationship differently, in light of the subsequent allegations. She admitted to seeing everything through a “different lens”.
[23] W.M. testified that the appellant stayed over at her house once every week or two weeks. There was a period of time, when they were considering moving in together, where he stayed more often. But this only lasted for a couple of weeks to a month. When the appellant stayed overnight, he would sometimes leave the bedroom to use the washroom. He also went to the girls’ bedrooms to say “good night” to them. She thought it was “sweet” that he wanted to tuck them in, but she did not see it happen. In cross-examination, W.M. agreed that she never woke up to find that the appellant was not there; however, she was a heavy sleeper. W.M. acknowledged that she never told the police about the appellant tucking her daughters in when she gave a statement in 2010.
(5) The Appellant’s Evidence
[24] The appellant was 46 years old at trial. By that time, he had been married since 2007 and had two children. Born in Iraq, the appellant came to Canada alone in 1998, but he had some relatives who he saw regularly. The appellant soon learned English and took college courses. He worked at a number of part-time jobs, including the one at the store where he met W.M.
[25] At first, the appellant thought that W.M. was married. He eventually asked W.M. if she was interested in going out with him. He asked her if she would be his “best friend.” The appellant explained that, in his culture, it meant “a romantic and sexual relationship but without commitment to any marriage, or move in.” W.M. said, “Sure, and we can have fun”. It was not until a few months later that he explained to W.M. what “best friends” meant. He advised her that it was always his intention to marry someone from his own culture. This was the source of arguments between them. He did not tell any of his relatives that he was dating W.M. as it would have been improper. He did tell some of his friends.
[26] The appellant described a very positive relationship with W.M.(1) and her twin brother. He said that he loved the twins, as they did him. It was different with V.M. The first time he met V.M. at the house, she did not seem happy that he was there. He described a very bad relationship with V.M. She criticized his cooking and the way he spoke. The appellant said, “I didn’t like her and she didn’t like me” and “I didn’t like her at all.” W.M. confirmed this characterization of the relationship.
[27] The appellant went to W.M.’s house for dinner two to three times a week. He slept over about three times a month – sometimes it was twice a month; sometimes it was four times a month. He denied staying over on weekdays, or if he had to work the following day. He mostly stayed over on Saturdays, following late nights out at a bar or club. He said, “that would be around 85 percent of the time.”
[28] The appellant contradicted W.M.’s evidence that there was a period when they tried living together and that he stayed over more frequently during that time. He said, “That never happened.”
[29] The appellant agreed that he wanted to spend all the time that he could with W.M. However, while he visited often for dinner during the week, he did not stay over on those nights because he worked or attended school during the week. He acknowledged that he lived a short distance from W.M.’s house, and that the convenience store and the college he attended were both nearby (essentially equidistant from his home and W.M.’s house). However, the appellant said it “didn’t matter” how close they were because he never tried it. The appellant kept a t-shirt and underwear at W.M.’s home, and she provided him with a toothbrush.
[30] The appellant insisted that he always remained in the master bedroom once he and W.M. retired for the evening. He said he “never” took part in putting the kids to bed, and “never” had to deal with them during the night if they ever woke up.
(6) The Disclosure of the Allegations
[31] The allegations came to light in 2010 – roughly six years after the relationship ended. W.M.(1) was 15 and in grade 10; V.M. was away at university. The disclosure arose during a fierce argument between W.M.(1) and her mother.
[32] One evening, W.M. confronted W.M.(1) about her chronic truancy. W.M.(1) had been lying to her mother, and hiding it from her, by deleting voicemail messages left by school authorities. W.M. was very angry and threatened serious discipline, such as terminating W.M.(1)’s access to her computer, cellphone, and social media. W.M.(1) testified that this would have been like a jail sentence to her.
[33] W.M.(1) then got in touch with V.M. The sisters communicated through Facebook. W.M.(1) told V.M. that she had been sexually abused by the appellant. V.M. said that she experienced the same thing. W.M.(1) asked V.M. not to tell their mother, afraid that she would “freak out.” At the time of this exchange, V.M.’s friend was with her and was made aware of what had transpired. This friend contacted W.M. to explain the situation. The police were called that evening.
[34] In cross-examination, W.M.(1) acknowledged that, when she spoke to the police on that first occasion, she did not tell them that she was in trouble with her mother at the time. She explained that she was nervous and forgot about it.
C. the trial judge’s reasons
[35] In his reasons for judgment, the trial judge gave a full account of the evidence, in addition to accurately setting out the positions of the Crown and the defence. He made detailed credibility findings. I will examine some of these findings more closely below. For the time being, I reproduce the trial judge’s general assessment of the evidence, at paras. 155-156:
By way of overall observation, both complainants testified as mature adult women about events that occurred when they were children. In my view, [W.M.(1)] was measured but more subdued in her testimony. V.M. was thoughtful and balanced in her testimony. V.M. conceded that there were limitations on her memory. Both complainants were emotional at times.
[Mr. H.] was a guarded witness and appeared uneasy. He was combative and flippant to a certain degree during his cross-examination.
[36] The trial judge also said of the appellant: “I find his evidence unconvincing. He was neither a credible nor a reliable witness.” The trial judge observed that the appellant was “motivated by an attempt to distance himself from any likely opportunity to have committed these offences”.
[37] In its closing submissions, the Crown argued that the evidence of each complainant could be used as similar fact evidence in considering the evidence of the other. The appellant resisted the application. In his reasons, the trial judge concluded that “standing alone and independent to each other, the complainants’ evidence was proof beyond a reasonable doubt.” Nonetheless, he allowed the similar fact application and analyzed the evidence within this framework.
D. discussion
[38] The appellant advances many grounds of appeal. He submits that the trial judge: applied different standards of scrutiny between the evidence of the complainants and the appellant; misapprehended parts of the evidence; relied unduly on the demeanour of the witnesses; improperly used a prior statement made by V.M.; improperly relied upon common sense assumptions about human behaviour; disregarded the timing and nature of the disclosure; and erred in his similar fact evidence ruling. As noted in para. 4, above, all grounds of appeal drive towards the same point – the trial judge erred in making his credibility assessments.
(1) Uneven Scrutiny and Misapprehension of the Evidence
[39] The appellant submits that the trial judge applied different standards of scrutiny as between the evidence of the complainants and the appellant. Under this general heading, the appellant focuses on 11 findings that he says demonstrate this skewed approach. There is some overlap between this ground of appeal and the appellant’s contention that the trial judge misapprehended certain aspects of the evidence. In the discussion below, I flag where the appellant’s submissions also involve claims of misapprehension.
[40] A claim of uneven scrutiny is often made in cases where the evidence “pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments”: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59. That description applies to this case.
[41] This court has often observed that success on this ground of appeal is very difficult to achieve: see R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18; R. v. Kiss, 2018 ONCA 184, at paras. 4 and 83; R. v. R.M., 2019 ONCA 419, at para. 31; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30; R. v. Polanco, 2018 ONCA 444, at para. 33; R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88; R. v. D.E.S., 2018 ONCA 1046, at paras. 15-16; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 96; and R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, at para. 34. In R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, Laskin J.A. explains why, at para. 39:
It is difficult for two related reasons: 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 judge's credibility determinations. [Emphasis added.]
[42] Skepticism is warranted here. Although styled as an uneven scrutiny argument, the appellant asks this court to substitute its own credibility findings. And while not confronting the issue directly as a ground of appeal under s. 686(1)(a)(i) of the Criminal Code, he suggests that the verdict is unreasonable. He submits that, “even if this court should disagree with that submission, the trial judge’s forgiving approach to the complainants’ evidence stands in stark contrast to his assessment of the defendant’s evidence”. I reject both submissions.
[43] Although an unreasonable verdict claim may be based on credibility findings, it cannot succeed unless the trial judge’s determinations “cannot be supported on any reasonable view of the evidence”: see R. v. Burke, [1996] 1 S.C.R. 474, at para. 7; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10; R. v. L.E., 2019 ONCA 961, 382 C.C.C. (3d) 202, at para. 108. Here, the trial judge was entitled to accept the evidence of the complainants’ first-hand account of being abused by the appellant.
[44] The trial judge did not employ a more exacting standard of scrutiny to the appellant’s evidence. Taking advantage of his “unique position…in being able to see and hear the witnesses” (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 11), the trial judge explained his assessment of the evidence of the complainants and the appellant. There is no indication that his approach to his task was unbalanced or skewed. Unlike Gravesande and Kiss, in which the uneven scrutiny claims succeeded, the appellant has been unable to point to specific, demonstrable problems with the evidence of the Crown witnesses.
(a) The Complainants’ Evidence
Prior inconsistent statements/inconsistencies between Crown witnesses
[45] The appellant submits that the trial judge failed to properly address the many internal contradictions in the evidence of V.M. and W.M.(1), as well as the conflicts between the evidence of all three Crown witnesses.
[46] The trial judge was aware of the internal inconsistencies in the evidence of the complainants when compared with their statements to the police and their testimony given at the first trial. These contradictions were reviewed for him in significant detail during submissions. He found them to be “slight and inconsequential” and they did not undermine the core allegations made by each complainant. Although he did not discuss every inconsistency identified by defence counsel at trial, he was not required to do so: see R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 45, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307.
[47] The trial judge responded to the purported conflicts in the evidence between V.M., W.M., and W.M.(1) that were relied upon by trial counsel in his final submissions. The trial judge evaluated the evidence of all three witnesses in light of the dated allegations, reaching back to 2002 to 2004, when V.M. was a young teenager and W.M.(1) was a child. I see no error in the trial judge’s approach. There is no indication that he was unduly tolerant or forbearing.
Motives to fabricate
[48] Although framed as an indicium of uneven scrutiny, the appellant faults the trial judge for not giving effect to the purported motives of the complainants to fabricate their allegations against the appellant. He submits that V.M.’s childhood hatred for the appellant and her desire to support her sister were her motives to lie, whereas W.M.(1) made up the allegations to escape punishment for truancy.
[49] There was no doubt that V.M. did not like the appellant. The appellant knew this and did not like V.M. The appellant contends that this motivated V.M. to allege sexual abuse against him years after his relationship with her mother had ended, an outcome that pleased V.M. According to the appellant, this nascent motive was only acted upon when W.M.(1) made her disclosure, apparently triggered by something completely unrelated. The trial judge was entitled to reject these alleged motives as far-fetched.
[50] It is in this context that the appellant submits that the trial judge dealt unfairly with V.M.’s evidence, especially concerning the things she said to the appellant as a child. The trial judge addressed this submission in the following way, at para. 164:
I found that V.M. was candid with the court when she admitted she did have gaps in her memory and was not prepared to fill the gaps with untruths. V.M. also admitted to unflattering aspects to her personality when she was a teenager. In my view, the name calling was not just indicative of a jealous teenage girl but had borderline racist overtones. V.M. detested the foods which he ate and the way he prepared meals. In addition, she made fun of his accent. In my view, these admissions enhanced her credibility. [Emphasis added.]
[51] The appellant complains that the trial judge gave V.M. credit for being racist, when it should have undermined her trustworthiness. I disagree. In this passage, the trial judge dealt with a number of aspects of V.M.’s evidence, including her candid admission to behaviour that reflected poorly on her and her refusal to fill in the gaps when she could not remember certain things.
[52] The appellant further suggests that the trial judge mischaracterized V.M.’s willingness to admit her faults, especially with respect to her treatment of the appellant. Instead of being forthcoming, V.M. only admitted unfavourable aspects when pressed in cross-examination. This was all laid out before the trial judge and he was entitled to view the evidence as he did.
[53] Moreover, it is important to have regard for how this issue was addressed at trial. Trial counsel did not suggest to V.M. that she was racist; nor did counsel ask the trial judge to characterize her treatment of the appellant as racist. V.M. was 12 to 14 years old at the time. The trial judge recognized the obvious impropriety in what she said to the appellant and he used the expression “borderline racist” of his own accord. His failure to characterize this misbehaviour of a child in stronger language, with a greater impact on her trustworthiness many years later, is not indicative of uneven scrutiny.
[54] Turning to W.M.(1)’s imputed motive to lie, the trial judge was unconvinced and explained why he was of this view. As he said, at paras. 165-166:
I also have difficulty with the defence companion theory that W.M.(1) was in so much hot water with her mother and was on the cusp of losing phone and computer privileges that she chose the “nuclear option” and concocted a scheme, with her sister to point the finger of blame at [Mr. H.]. W.M. questioned W.M.(1) if she was being bullied at her new school or if there were any other problems. It seemed logical that she could have escaped her mother’s wrath by availing herself to other excuses or explanations in order to get out of trouble. Moreover, W.M.(1) had no credible reason years later (absent the allegations) to hate [Mr. H.] that much and falsely accuse him of sexual assault. W.M.(1) testified that she was ambivalent towards [Mr. H.] notwithstanding that she was cognizant of the fact that V.M. did not like [Mr. H.].
In my view, the defence submission that W.M.(1) picked [Mr. H.] as the scapegoat is untenable when compared to [Mr. H.’s] testimony regarding his relationship with W.M.(1). [Mr. H.] testified that W.M.(1) did not dislike him. In fact, he testified that W.M.(1) loved him and there were no problems in their relationship when he broke up with W.M. I agree with the Crown’s submissions that it made no sense that even though W.M.(1) was aware of V.M.’s hatred towards [Mr. H.] that years later, according to the defence, W.M.(1) exacted her revenge. [Emphasis added.]
[55] Given the positive relationship between W.M.(1) and the appellant, and in view of the passage of time between the end of the relationship and the disclosure, the alleged motive was, at best, weak. The trial judge was entitled to reject it. His failure to buy into this theory is not indicative of an unbalanced approach.
Implausible nature of the assaults
[56] The appellant submits that the trial judge overlooked the implausible nature of the abuse of V.M., which the appellant characterizes as “the height of audaciousness”. Given the hostility she had for the appellant, it made her subsequent allegations implausible, according to the appellant.
[57] The appellant takes issue with the following passage from the trial judge’s reasons. In discussing V.M.’s credibility, he said at para. 162:
The defence argued that given that there were open hostilities between [Mr. H.] and V.M. it defied credulity that [Mr. H.] was that intrepid to enter V.M.’s bedroom during the night. On its face it was an intriguing argument. However, another reasonable inference could be that [Mr. H.] had engaged in a regular routine of abuse and since V.M. did not complain it may have emboldened him. [Emphasis added.]
[58] This conclusion was open to the trial judge on the evidence. V.M. testified that although she disliked the appellant, she was not able to disclose the abuse, especially given her mother’s love for the appellant. Moreover, V.M. testified that, while she did not like the appellant from the beginning, her antipathy for him became more intense after the sexual abuse started. Accordingly, I reject the appellant’s expansive contention that this portion of the trial judge’s reasons is indicative of a “pattern of taking every fact or constellation of facts and attaching the most sinister possible inference against [Mr. H.]”.
V.M.’s propensity to “cry wolf” and previous false allegations
[59] The appellant submits in his factum that, “[V.M.] did not simply have a motive to lie; she had both a motive to lie and a propensity to lie.” [Emphasis in the original.] The appellant further submits that “her own mother” conceded she had a propensity to lie.
[60] First, this is not a fair characterization of what W.M. said of her daughter. W.M. agreed that, although V.M. was the “sort of kid” who would “cry wolf”, she was at pains to stress, numerous times, that this occurred “when she was little” and it was only with respect to “little things” and not “big things”.
[61] The appellant points to an incident in the house when the appellant and V.M. walked past each other and V.M. said, “Hey, he touched my boob.” The appellant submits that W.M. “fortunately” witnessed the incident and was sure that nothing had happened. But this view came from the appellant. The appellant alleged that W.M. and V.M. were evasive about the incident but they did not deny that it happened. The evidence did not give a clear picture of what transpired at the time. The trial judge’s failure to mention this vague body of evidence is not indicative of differing levels of scrutiny.
[62] The appellant makes the same argument in relation to another alleged incident where V.M. said that the appellant threw a phone at her after she had called him a “pervert”. The appellant remembered the “pervert” reference but denied throwing his phone at V.M. W.M. had a memory of the “pervert” remark, but no memory of a phone being thrown.
[63] It is important to consider how this evidence emerged. The defence raised the issue in the cross-examination of V.M. in an attempt to establish an example of a made-up allegation – i.e., that the appellant threw a phone at her. The appellant submits, “One would have thought that [W.M.] would remember such a memorable incident. A more plausible inference is that this incident never took place and was another example of [V.M.’s] lies.” Once again, this submission quibbles with the credibility findings of the trial judge. It also ignores that it was his province to accept some, none, or all of a witness’ evidence. This evidence was not referenced in the closing submissions of the Crown or the defence. It was not important.
The complainants’ evasiveness
[64] The appellant challenges the trial judge’s finding that the complainants testified in a thoughtful and balanced way. He submits that this was unfair because his own testimony was characterized as “evasive and combative”. He relies on the fact that the complaints often “refused to answer questions” with “I don’t know” or “I can’t remember”. Apparently, this type of response was collectively invoked 400 times by the complainants, in response to questions about things “that the complainants could be expected to remember”.
[65] The appellant may believe the complainants were evasive, but the trial judge did not. He was entitled to reach this conclusion. There are a number of reasons why it is not indicative of a skewed approach. First, the complainants testified about events that happened in 2002 to 2004, when they were both young. Second, a witness’ response of “I don’t know” or “I don’t remember” does not necessarily amount to a “refusal” to answer. Third, without more, the number of times that these types of answers were given is unhelpful. The appellant also asserted a lack of memory numerous times in his testimony. As he said at one point in his cross-examination, “There are things I remember and there are things I forget.” Lastly, trial counsel did not urge the trial judge to make this finding about the complainants, presumably because of the appellant’s responses along the same lines.
(b) The Appellant’s Evidence
[66] The appellant points to the trial judge’s findings about his own evidence as indicative of an unbalanced approach. The appellant submits that the trial judge fixated on “trivial inconsistencies”. He also submits that the trial judge misapprehended the evidence in relation to the first two examples discussed below (“Infrequency of staying overnight” and “Recalling events that defied belief”). This overlaps with a separate ground of appeal dealing with misapprehensions of the evidence. I will deal with both grounds together.
Infrequency of staying overnight
[67] As noted above, the frequency with which the appellant was at W.M.’s house, and how often he stayed over, was contentious. It impacted on the plausibility of V.M.’s evidence because she testified that the appellant sexually assaulted her, “Too many times to count. It became a regular thing.” This evidence was not important to W.M.(1)’s allegations because she said she was sexually assaulted about four times in total.
[68] The appellant submits that the manner in which the trial judge handled this evidence reflects the application of an unduly harsh standard as it relates to his consideration of the appellant’s evidence. He submits that the trial judge should have accepted his own assertion of how often he stayed over because it was corroborated by W.M.
[69] There was a good deal of evidence at trial about how often the appellant stayed overnight, some of which is reviewed above. To recap:
· W.M. testified that the appellant stayed over once a week or once every two weeks;
· V.M. testified that the abuse happened on both weekends and weekdays. She told the police that the appellant touched her two to three times a week. She disagreed with her mother’s estimate of how often the appellant stayed overnight;
· W.M.(1) said that the appellant stayed over once or twice a week; and
· The appellant testified he stayed over about three times a month – sometimes twice a month; sometimes four times a month.
[70] Because W.M.’s evidence was consistent with the appellant’s estimate, the appellant contends that it was unfair for the trial judge to reject the appellant’s evidence on this point, reflecting a lack of balance in the trial judge’s reasons as a whole. I disagree.
[71] When first addressing this issue, the trial judge said, at para. 8: “According to W.M. [Mr. H.] stayed over approximately two or three times a week.” This seems to have been a typographical mistake; it was V.M. who estimated this frequency, not her mother. Nevertheless, the trial judge accurately recorded W.M.’s frequency evidence in para. 43 of his reasons: “After they initially dated [W.M.] estimated that [Mr. H.] stayed over approximately once every week or every two weeks until the end of the relationship.” Thus, the trial judge understood the various frequency estimates in the evidence. He did not misapprehend W.M.’s evidence.
[72] However, more needs to be said about W.M.’s evidence as a whole, and how the trial judge approached it. When the trial judge first addressed her evidence in his reasons, he said the following at para. 41: “I do not intend to spend a lot of time outlining W.M.’s evidence as will be explained further on in my reasons.” In summarizing the parties’ positions, the trial judge wrote, at para. 107:
It was conceded by both the Crown and the defence that W.M.’s evidence had significant limitations due to her inability to recall conversations and specific events. The Crown urged that the court should not accept her evidence unless it was corroborated or supported by other testimony from other witnesses or by common sense. The Crown suggested that there were aspects of her evidence that the court can accept that pertained to the sleeping arrangements and her schedule. [Emphasis added.]
[73] It is clear from his reasons that the trial judge understood W.M.’s evidence. However, and while he did not say so explicitly, he rejected her evidence on this point. This was not unfair, nor was it indicative of uneven scrutiny.
[74] There were other aspects of her evidence to which he did not refer which, if accepted, would have been damaging to the appellant’s position. For instance, the appellant said that he never stayed over during the week; W.M. said that he did, but not frequently. W.M. said there was a 2-4 week trial period when they tried living together; the appellant said this never happened. W.M. said that the relationship had been serious and they might have married had the appellant’s family approved; the appellant said marriage had never been a possibility. Perhaps most importantly, W.M. testified that the appellant would go to her children’s bedrooms to tuck them in at night; the appellant denied this happened. On this last point, W.M.’s evidence was potentially very damning to the appellant, who claimed minimal opportunities to commit the offences, and insisted on never leaving the master bedroom except to use the bathroom after having sex with W.M.
[75] It might have been preferable had the trial judge better explained why he did not rely upon W.M.’s evidence of the frequency of overnight stays. However, his choice not to do was rational and his overall treatment of her evidence was very fair to the appellant. Far from engaging in an unbalanced assessment of the evidence, as the appellant suggests, the trial judge’s overall treatment of W.M.’s evidence was to the benefit of the appellant.
Recalling events that “defied belief”
[76] As another example of uneven scrutiny, the appellant points to the trial judge’s rejection of his claim that V.M. had a lock on her bedroom door. The appellant explained a confrontation between V.M. and her mother when V.M. ran to her bedroom and locked the door behind her. The trial judge said the following about this part of his evidence, at para. 175:
I found [Mr. H.’s] ability to recall details that he could not have possible known would be relevant sixteen (16) years later defied belief. For example, [Mr. H.] had a specific recollection that there was a lock on V.M.’s door. He recalled an incident whereby V.M. ran into her bedroom and locked herself in her room. V.M. [sic, W.M.] demanded that she unlock the door, after V.M. [sic, W.M.] could not unlock it from the outside with a pin. Eventually the incident ended by V.M. unlocking the door. I found it odd that [Mr. H.] recalled such an insignificant event so many years later. In my view, this was another attempt to demonstrate limited access to a bedroom. However, V.M. testified that she did not have a lock on her door as she slept in a converted office. [Emphasis added.]
[77] The appellant takes issue with this passage. He says the issue should have been decided differently: “There is nothing bizarre about remembering such an incident. It would have been more unusual if he had no memory of what appeared to be a significant confrontation.” It must be remembered that the trial judge made this assessment in the light of his general findings that the appellant had sought to minimize his opportunities to commit the offences against the complainants. The conclusions he reached were available to him on the record.
[78] The appellant also submits that the trial judge misapprehended the evidence on this issue. He says that the evidence confirmed his view that there was a lock on this bedroom door. But the evidence was conflicting. W.M. testified that she did not remember whether the kids’ rooms had locks. However, she later said that V.M. would lock her door after arguments. W.M.(1) testified that she did not think V.M. had a lock on her door. V.M. flatly denied the suggestion: “There was not a lock on my door, I was not allowed to have locks.”
[79] Moreover, the trial judge’s focus was not on whether or not there was a lock on V.M.’s bedroom door, but the appellant’s claim to have remembered such a trivial detail, years later, and especially in light of the trial judge’s broader conclusion that the appellant attempted to distance himself from opportunities to commit the offences. His reasons reveal no error, nor any inclination to hold the appellant’s evidence to a higher standard.
The trip to the beach
[80] The appellant takes issue with the trial judge’s appraisal of part of the appellant’s cross-examination concerning a visit to the beach. The issue unfolded during the following exchange:
Q.: There was a time in fact you took [W.M.(1)] to the beach, is that correct?
A.: I took [W.M.(1)] to the beach you say?
Q.: Yes.
A.: No.
[81] The appellant was then confronted with his testimony from his previous trial in which he said he had gone to the beach with W.M.(1), V.M., and W.M. In the ensuing exchange, the appellant insisted that he had answered the Crown’s question accurately – the Crown had only asked about W.M.(1) alone, not W.M.(1), V.M., and W.M.
[82] The trial Crown pointed to this exchange as indicative of the appellant’s insincerity. The trial judge agreed and said, at para. 173:
When he was confronted with his testimony in his previous trial that in fact he admitted that he had taken the entire family to the beach, however, in my view he double downed’ when he responded that he was asked if he only took W.M.(1) to the beach. While this may have been a clever response, which perhaps technically may be accurate to the specific question poised, it was an unpersuasive answer that was intended to not fully answer the question. In my view, if [Mr. H.] wanted to be open and honest in his evidence he should have fully answered the question, rather than focusing on a slight language distinction to cover the fact that he did not recall whether or not he took W.M.(1) to the beach. [Emphasis added.]
[83] The trial judge was entitled to reach this finding on the record. Moreover, it must be considered in view of his overall impression of the appellant as “combative and flippant” during cross-examination. The trial judge had the advantage of being present during this exchange. Allowing for the fact that other judges may have treated the evidence differently, it cannot be said that the trial judge’s observations were inaccurate or unfair.
Leaving the bedroom during the night
[84] The appellant submits that the trial judge was too harsh in his criticism of his evidence on the issue of whether he ever left the bedroom at night. The appellant testified that, following intimacies with W.M., he would use the bathroom. The appellant was asked about his testimony at his first trial when he said that he never left the room. He clarified that, once he and W.M. had gone to sleep, he never left the bedroom. This exchange was made problematic by the trial Crown’s tendency to summarize the questions and answers from the first trial, rather than reading them verbatim, as defence counsel quite properly insisted.
[85] The trial judge agreed with defence counsel’s objection as to the form of the cross-examination; nonetheless, he was still unimpressed by the appellant’s evidence on this point. As he said, at para. 174:
I also found that during the entirety of the relationship [Mr. H.’s] claim that he never left the bedroom at night other than when he went to the washroom after sex difficult to accept. His previous trial testimony, which was put to him, made it clear that he never left the bedroom after going to sleep. However, in his current testimony when he said that he did leave the bedroom after sex he did go to the washroom. There was a defence objection that the Crown’s question was about not leaving the bedroom after sex. However, [Mr. H.] admitted that he never left the bedroom at all. I simply find this hard to believe. In my view, it was another transparent example of [Mr. H.] denying that he had an exclusive opportunity to carry out the acts alleged. [Emphasis added.]
[86] This finding was open to the trial judge to make on the entirety of the record. It does not reflect the application of an unduly exacting standard of scrutiny.
(c) Conclusion
[87] The appellant has failed to make out the case for uneven scrutiny. The complaint he makes is not so much about the application of discordant standards as it is about the complainants being believed when he was not. In essence, the appellant’s claim was an assertion of an unreasonable verdict. Referring to the shortcomings in the evidence of the complainants, the appellant submits in his factum: “Any number of these flaws would have been ample basis to raise a reasonable doubt. The cumulative evidence of these credibility flaws made the verdict unreasonable.”
[88] In my view, the verdicts were neither unreasonable, nor were they the product of a flawed or unfair fact-finding process. I would dismiss this ground of appeal.
(2) Undue Reliance on Demeanour Evidence
[89] The appellant submits that the trial judge placed undue emphasis on evidence of demeanour when he characterized the appellant as “uneasy” and “guarded”. The appellant asserts that, “Particularly given the cultural and linguistic differences – [Mr. H.] is a relatively recent immigrant who speaks English as a second language – the Court should be mindful of overemphasizing demeanour and making assumptions about culturally appropriate conduct.”
[90] Respectfully, there is no merit in this submission. There was not a hint in the trial judge’s reasons that he made any assumptions about the appellant’s linguistic abilities. The appellant declined the assistance of the Assyrian interpreter who had originally been requested for the trial. There is no indication in the record that the appellant struggled to express himself. Moreover, I fail to see any connection between the trial judge’s use of the terms “uneasy” or “guarded” and the appellant’s allusion to “culturally appropriate conduct”.
[91] Triers of fact, whether judges or jurors, must guard against undue reliance on demeanour. That does not mean that demeanour is irrelevant. It is one of the factors that a trial judge may consider in evaluating a witness’s credibility: R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 34; R. v. T.H., 2016 ONCA 439, at para. 4. In this case, demeanour was just one of the factors that the trial judge relied upon in making his credibility assessments. He did not over-emphasize demeanour, nor did he treat it as a controlling factor.
[92] I would reject this ground of appeal.
(3) Misuse of a Prior Statement
[93] The appellant submits that the trial judge erred in using a prior statement made by V.M. as confirmatory of her trial testimony. This ground of appeal relates to the incident in which V.M. called the appellant a “pervert”. This evidence was adduced by the defence in its cross-examination of V.M. in an effort to demonstrate that she made things up about the appellant.
[94] In his reasons for judgment, the trial judge referred to this incident as “quite telling”. He said: “I agree that there was no confirmatory evidence that [Mr. H.] threw a telephone in response. However, W.M., V.M., and [Mr. H.] agreed that the word pervert’ had been used at some point in time. I accept as a fact that at the time V.M. was reaching out to her mother.”
[95] The trial judge was tracking the language of V.M. in her assessment of the incident. It is important to appreciate the context in which the statement was made. V.M. said she made the comment because the appellant watched television shows that she thought were inappropriate. This would embarrass her when she had company over. V.M. explained:
It wasn't something that was ever on in my house prior to that…I didn’t know how to handle the situation because my relationship with my mother at the time was rocky at best, and I felt helpless, and I – it was like my way of reaching out without saying anything, but obviously it didn't set off any alarms for anyone.
[96] Moreover, the trial judge’s finding was made after a finding in favour of the appellant, based on the totality of the evidence, that there was no confirmation for V.M.’s evidence that the appellant threw his phone at her. It would have been preferable had the trial judge further explained why he referred to the “reaching out” statement. However, there is no indication that it played any further role in his analysis, nor that he used it to bolster V.M.’s credibility.
[97] I would not give effect to this ground of appeal.
(4) Improper Common Sense Assumptions about Human Behaviour
[98] The appellant submits that the trial judge erred in making a common sense assumption about the nature of the appellant’s relationship with W.M. In his consideration of how often the appellant stayed overnight, and whether he stayed over on weeknights (which the appellant denied), the trial judge referenced the strong feelings that the appellant said that he had for W.M. at the time.
[99] In cross-examination, the appellant agreed with the suggestion that he and W.M. “wanted to spend basically all the time [they] could together”. The trial judge considered this evidence along with the evidence that the appellant often went to W.M.’s house for dinner during the week, kept underwear and a t-shirt at the house, and that W.M.’s house was close to the appellant’s own residence, his place of employment, and the college he attended. But as the trial judge said, at para. 172, “It was difficult to accept that never once given all the circumstances, as he testified, [Mr. H.] never slept over on a week night even though he admitted that he wanted to spend as much time as he could with W.M.”
[100] The trial judge did not make unwarranted assumptions about human behaviour. He evaluated the evidence on this issue and highlighted a contradiction between the appellant’s stated actions and his purported state of mind. The appellant testified that he wanted to spend as much time as he could with W.M., but he also testified that he did not even try to stay overnight more frequently. Again, these findings must be considered within the trial judge’s overall assessment that the appellant sought to minimize his access and opportunities to commit the offences.
[101] I would reject this ground of appeal.
(5) Delayed Disclosure
[102] The appellant submits that the trial judge erred in not giving effect to the argument that V.M.’s delay in disclosure should have given the trial judge pause for concern because she was an assertive person who was not shy about criticizing the appellant. Such a person would be expected to make a timely disclosure, so the argument goes. The trial judge disagreed, at para. 160:
V.M. was a strong minded and opinionated teenager, however, I do not accept that just because she was an “in your face” teenager that should have made her more inclined to disclose the alleged sexual abuse. This was close to the stereotypical reasoning in sexual assault cases that courts strive to avoid in engaging. The defence promoted the idea [that] V.M. always stood up for herself and in fact was extremely disrespectful and rude to [Mr. H.], so why did she not disclose the allegations? Whether as a teenage girl V.M. was insecure about her relationship with her mother or whether both complainants were not emotionally equipped to deal with the sexual abuse and to tell anyone about it, was neither here nor there. The delay in disclosure standing alone does not give rise to an adverse inference against credibility. [Emphasis added.]
[103] In reaching this conclusion, the trial judge was applying the principles articulated in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. Writing for the majority, Major J. held that, in order to dispel the possibility of stereotypical reasoning, a trial judge should instruct the jury that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”; “the timing of the complaint is simply one circumstances to consider in the factual mosaic of a particular case”, and “[a] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant”: D.D., at para. 65.
[104] The appellant attempts to sidestep this authority by asserting that it was not suggested that delayed disclosure alone undermined V.M.’s credibility, but rather it was highly unlikely that “this complainant would have delayed disclosure given everything else we know about her.” [Emphasis in the original.]
[105] The distinction the appellant attempts to draw is unconvincing. Every case involves the application of the principles in D.D. to a specific complainant (i.e., “this complainant”). To the extent that D.D. should not apply to V.M. because she was an assertive teenager would turn this line of authority on its head. It would mean that D.D. would only apply to cases involving non-aggressive or demure complainants, and not those who are assertive or aggressive. I reject this proposition.
[106] I would dismiss this ground of appeal.
(6) Similar Fact Evidence
[107] The appellant submits that the trial judge erred in allowing the Crown’s similar act application. However, as noted in para. 37, above, the trial judge found that the allegations had been proven against the appellant beyond a reasonable doubt without having to rely upon this mode of reasoning. In the circumstances, it is not necessary to address this ground of appeal.
E. disposition
[108] I would dismiss the appeal.
Released: “JS” June 23, 2020
“Gary Trotter J.A.”
“I agree. Janet Simmons J.A.”
“I agree. S.E. Pepall J.A.”
[1] This was the appellant’s second trial. After being convicted at his first trial, the appellant successfully appealed his convictions to this court: see R. v. E.H., 2017 ONCA 423.