COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.B., 2025 ONCA 318[1]

DATE: 20250428

DOCKET: COA-23-CR-1012

Huscroft, Dawe and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent

and

B.B.

Appellant

John Fennel, for the appellant

Philippe Cowle, for the respondent

Heard: January 31, 2025

On appeal from the conviction entered by Justice Jocelyn Speyer of the Superior Court of Justice on July 7, 2023.

Huscroft J.A.:

[1]          The appellant was charged with committing historical sexual offences against his two stepdaughters, N.S. and S.S. The trial judge acquitted him of all of the charges relating to S.S. and of some of the charges relating to N.S. However, she found that the appellant had committed the most serious sexual offences alleged by N.S. – specifically, forced sexual intercourse and oral sex – and convicted him on a single count of sexual assault. The trial judge also found the appellant guilty of committing two physical assaults against N.S., which the appellant had not contested at trial.

[2]          The appellant appeals against only his sexual assault conviction and raises two arguments on appeal. First, he argues that the trial judge misapprehended the evidence on whether the most serious sexual assaults alleged by N.S. had begun when she made a statement to the police in September 2002, denying that any abuse had occurred. Second, he argues that the trial judge misapprehended the evidence in rejecting the testimony of S.B., the appellant’s wife and the complainants’ mother.

[3]          I would dismiss the appeal for the reasons that follow.

The trial judge did not misapprehend the evidence

[4]          The law concerning the misapprehension of evidence is not in dispute. As the Supreme Court noted in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, the standard set out in this court’s decision in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 is a stringent one. A misapprehension of the evidence is more than simply an apparent error. The error must be real rather than speculative, and plain in the language of the decision. As LeBel J. noted in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, such an error will be “readily obvious”: at para. 53. It is not to be parsed from the trial judge’s reasons. The misapprehension of the evidence must go to the substance rather than the detail; it must be material rather than peripheral to the reasons; and it must play an essential part not only in the narrative of the decision but in the reasoning process that led to the conviction: Lohrer, at para. 2.

[5]          The appellant’s argument focuses on the timing of N.S.’s allegations and what he characterizes as an inconsistency in her evidence. He argues that the sexual assaults involving forced sexual intercourse and oral sex alleged by N.S. must have begun prior when she was 16 years old or younger. However, in September 2002, when N.S. was 17, she told Constable Everson that the appellant had not abused her in any way, and days later said that he had never touched her and that there was never a suggestion of inappropriate touching. According to the appellant, this was a significant inconsistency the trial judge had to resolve. She failed to do so because she wrongly concluded that N.S.’s denial of the assault referred only to the less intrusive sexual assault charges on which the appellant was acquitted.

[6]          I do not accept this argument.

[7]          The trial judge found that guilt beyond reasonable doubt had not been established on the less intrusive sexual assault charges because of shortcomings in the evidence, not simply because of N.S.’s and her sister S.S.’s denials to Constable Everson that the appellant had abused them. But the assaults on N.S. involving forced sexual intercourse and oral sex stood on a different footing.

[8]          The trial judge found N.S.’s evidence of these assaults detailed, compelling, and coherent. There were no internal inconsistencies in N.S.’s account, nor inconsistencies with any other evidence the trial judge had not rejected. N.S. gave a detailed account of how the appellant taught her to perform oral sex on him and how he performed oral sex on her, in addition to a detailed account of how the appellant forced her to have intercourse with him in her bed when her mother had left the home. The trial judge noted that, in contrast to the other allegations, on which she acquitted the appellant, N.S. was not attempting to recall things that happened in early childhood, and that she had no concerns N.S. misremembered any of the details of the traumatic acts she alleged. The trial judge found that N.S.’s accounts of the forced sexual intercourse and oral sex assaults were credible and reliable. In contrast, the trial judge did not believe the appellant’s denials, finding that his evidence was “simply not credible” and did not raise a reasonable doubt.

[9]          As for the apparent inconsistency in N.S.’s statement to Constable Everson, the trial judge found that N.S. did not allege that the forced sexual intercourse and oral sex occurred prior to September 2002, when the statements were made. She found, further, that it was unclear how old N.S. was when these assaults began; they could have occurred after the September 2002 statement to the police, which appears to have focused on the assaults alleged to have occurred when N.S. and her sister were in the parental bed. In other words, the trial judge found that the police statement did not give rise to an inconsistency with N.S.’s evidence that had to be reconciled.

[10]       This finding was open to the trial judge. N.S.’s evidence as to the dates on which things occurred was in some instances erroneous. For example, N.S. testified she left home at 18 but that was in error, as she would have been 19. In other instances, her evidence was imprecise. For example, in answer to a question as to when the assaults began, N.S. said she was “16-ish”. In answer to the question about “approximately” when the appellant performed oral sex on her, she said she was 16, but she also described it as taking place shortly after she told the appellant that she had lost her virginity and did not specify that date, or whether this had actually occurred.

[11]       In short, the evidence concerning the timing of the alleged sexual assaults and N.S.’s denial to the police was unclear. This was the context in which the trial judge concluded that the apparent inconsistency with the police report did not undermine the credibility and reliability of N.S.’s evidence, because the highly intrusive assaults could have begun after she made her police statement:

It is not entirely clear to me exactly how old [N.S.] was when these highly intrusive acts began. She testified at one point that she was 16, but other parts of her evidence suggest it may have started earlier. Since these highly intrusive events could have occurred after [N.S.]'s 2002 statement to the police, which appears to have been focused on what was going on in the parental bed, her denial then that any abuse had occurred does not affect my analysis of the credibility and reliability of her allegations of offences that occurred after her 2002 interaction with the police.

[12]       The trial judge did not misapprehend the evidence. There is no obvious error here, still less an error that goes to the heart of the trial judge’s reasoning process. The trial judge observed that the highly intrusive assaults could have begun when the complainant was 16, or they could have occurred after the 2002 statement to the police. Given the lack of precision in the complainant’s testimony, this was an accurate assessment. Because the trial judge refrained from making a precise finding about when these assaults began, there was no inconsistency that had to be resolved in analyzing N.S.’s credibility and reliability.

[13]       The trial judge fully and fairly addressed the difficulties in the evidence. She noted that memory was naturally and understandably affected by the passage of time. Some of these difficulties contributed to her decision to enter acquittals on some of the other counts. But the trial judge found N.S. to be generally an “honest and sincere” witness and accepted her account of the most serious assaults involving forced intercourse and oral sex. She made no error in doing so.

The trial judge was entitled to reject S.B.’s testimony

[14]       The appellant argues that the trial judge employed facts not in evidence in evaluating the response of S.B. – the appellant’s wife and the complainants’ mother – to N.S.’s allegation that the appellant had touched her in a sexual manner.

[15]       S.B.’s evidence was that her daughter N.S. had once “alluded” to the appellant sexually assaulting her. S.B. testified that she told N.S. they were going to the hospital for her to be tested immediately, then to the police station. S.B. testified that N.S. immediately said nothing had happened and that the defendant was just intimidating her. N.S. told S.B. the appellant had pushed her down, and again, S.B. said she would get the car and that they would go. S.B. testified that N.S. then said that the appellant did not do anything and S.B. said she would mediate between N.S. and the appellant.

[16]       The appellant submits that there was no evidence that S.B. knew what occurred at a sexual assault examination; that N.S.’s allegation of a sexual touch that was immediately retracted did not constitute evidence, so S.B.’s response to it was reasonable; and that there was no evidence that S.B. held herself out to be a supportive, empathetic mother and that her response to N.S. failed to live up to that standard.

[17]       These submissions ignore the Supreme Court’s guidance in R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 72, that reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible but often necessary in assessing testimonial evidence.

[18]       The trial judge described S.B.’s evidence about this incident as “nonsense” and said that it made no sense to take N.S. to the hospital in these circumstances. She found that this aspect of S.B.’s evidence was incredible and that it undermined the credibility of S.B.’s evidence as a whole. These findings were open to the trial judge and are entitled to deference in this court.

[19]       The appellant asserts that S.B.’s response to N.S.’s allegation of sexual abuse “fell well within the heartland of reasonable responses.” The trial judge found otherwise. She did not accept S.B.’s evidence because of its internal inconsistencies and its implausibility. The trial judge made no error in rejecting S.B.’s evidence. Nor did the trial judge err in finding that S.B.’s evidence was implausible because of her ability to recall unremarkable, long-distant events in considerable detail. This is exactly the sort of call that the trial judge was well placed to make. There is no basis for this court to interfere with it.

DISPOSITION

[20]       I would dismiss the appeal.

“Grant Huscroft J.A.”

“I agree. R. Pomerance J.A.”

 

Dawe J.A. (dissenting):

[21]       I have read Huscroft J.A.’s majority reasons. Unlike my colleagues, I would give effect to the appellant’s first ground of appeal. In my view, the trial judge misapprehended the evidence in a manner that affected the reasoning path by which she found the appellant guilty on the sexual assault charge in Count 9. I would accordingly allow the appeal, set aside the appellant’s conviction on Count 9, lift the conditional stay of proceedings the trial judge entered on the related sexual exploitation charge in Count 11, and order a new trial on these two counts.

A.           Factual Background

(1)         The complainants’ sexual abuse allegations

[22]       The appellant and S.B., the mother of the two complainants, N.S. and S.S., began living together in Oshawa in the fall of 1999, when N.S. was 14 years old and S.S. was 11 years old.

[23]       Both complainants testified that during the first few years that the appellant lived with them, they often both went to their mother’s bedroom and got into bed with her and the appellant. They both described the appellant as having touched them in a sexual manner on some of these occasions, when their mother was also present, and sometimes when the appellant’s own children were also in the bed with them. S.S. maintained that these incidents continued until she was around 14 or 15 years old. N.S. testified that when she was around 15 the appellant also began sexually touching her in the bed in her own bedroom.

[24]       The trial judge acquitted the appellant of the charges arising out of these allegations, Counts 1, 4 and 8.[2] I will discuss her reasons for doing so below.

[25]       In addition, S.S. also alleged that one time, when she was 15 years old, the appellant performed a vaginal examination on her while her mother watched. S.S. did not recall her sister N.S. being present, but N.S. testified that she had witnessed this incident, and that their mother had not been there. The trial judge acquitted the appellant of the charges based on this allegation, Counts 3, 5, 6 and 7.

[26]       N.S. testified further that at some point the appellant began:

[To] constantly … ask if I had lost my virginity. And anytime that he asked me if I lost my virginity and I said no, he would say that it was very important that I tell [N.S.’s mother] when I lost my virginity. I don't know why that was so important.

She eventually told the appellant that she was no longer a virgin, explaining: “I was tired of constantly being questioned and nervous of what would happen if he figured out I was lying.” N.S. testified that she was 16 years old at the time.

[27]       N.S. testified that after she made this disclosure, the appellant began to make her perform oral sex on him, and also began performing oral sex on her. This quickly progressed to sexual intercourse. N.S. maintained that once these forms of sexual abuse began, the appellant continued to have sex with her a “few times a week”, on a “regular basis”, until she moved out of the house in the fall of 2004. It is common ground that N.S. was 19 years old when she moved out.

[28]       N.S. also described three specific incidents of sexual intercourse that she recalled occurring when the family was away from home: two when they were at a cottage, when N.S. was 16 years old, and the other when they were camping in a tent. However, the trial judge explained in her reasons that she was disregarding N.S.’s evidence about these incidents, since the charges against the appellant were all particularized to allege offences committed in Oshawa, and the Crown had not sought amendments to extend these counts to capture any other geographical locations.

[29]       N.S. testified that her mother was aware of the ongoing sexual abuse by the appellant, and eventually came up with a plan to keep N.S. and the appellant separated in different parts of the house. N.S.’s evidence was that she moved out after the appellant reneged on this agreement, and came to her bedroom and had sex with her again.

[30]       Based on N.S.’s allegations that the appellant had forced oral sex and sexual intercourse on her multiple times over several years – which the trial judge referred to as “the highly intrusive sexual assaults” – the trial judge found the appellant guilty of a single count of sexual assault, Count 9. The trial judge conditionally stayed a partly overlapping charge of sexual exploitation in Count 11.

(2)         N.S. and S.S.’s September 2002 police statement

[31]       On September 24, 2002, N.S. told a teacher at her school that the appellant had physically assaulted her the previous evening. The school called the police, and officers took statements from both N.S. and S.S. One of the officers who took these statements and then prepared an Incident Report, Constable Everson,[3] testified at trial but no longer had any independent memory of the interviews. Counsel agreed that her notes and report should be admitted as evidence of her past recollection recorded, and the trial judge accepted that the contents of these documents were “credible and reliable”.

[32]       N.S. told the police on September 24, 2002 that the previous evening her boyfriend had brought her home late. The appellant had been angry and had grabbed N.S. by the throat and thrown her against a wall. S.S. told the police that she had not witnessed this assault, but had heard a noise that sounded like something hitting the wall. The Incident Report added: “Both the girls stated to the officers that their stepfather has never hit them or abused them in anyway [sic] in the past.”

[33]       When N.S. and S.S. made their police statements on September 24, 2002, their mother was out of town. Cst. Everson accordingly arranged for N.S. and her mother to both come to the police station a few days later, on September 27, 2002. The Incident Report states that on this date:

[N.S.] arrived at the station prior to her mother arriving. The officer spoke to [N.S.] alone at this time. The officer asked [N.S.] with regards to her lying in bed with [the appellant] in the mornings. [N.S.] informed the officer that since she was a young child she would always get into bed with her mother in the morning when she woke up. This tradition has continued in her teenage years. [N.S.] stated that her mother [is] usually in bed with [the appellant] when she does this. On Tuesday, Sept. 24, 2002 [N.S.] went downstairs to say good morning. She forgot that her mother was not home and she lied down on the bed. [N.S.] stated to the officer that there has never been any inappropriate touching between her and [the appellant]. She stated to the officer that there has never even been the suggestion. [Emphasis added.]

[34]       N.S. also told the police that she did not want the appellant charged with assault, and her mother advised Cst. Everson that she was arranging family counseling. The police accordingly cautioned the appellant, but did not charge him at this time.

[35]       It is common ground that N.S. was 17 years old when she made these two statements to Cst. Everson in September 2002.

[36]       In cross-examination, N.S. testified that she recalled telling the police in 2002 that the appellant was sexually abusing her, but that her mother persuaded her to then tell them that she had changed her mind, and did not want to press charges.

(3)         The physical assault charges

[37]       The physical assault allegation that N.S. had made to the police in September 2002 was the basis for the assault charge in Count 12. N.S. also alleged that on another occasion the appellant had assaulted her by slamming her onto the top of a hot tub in the basement. This was the basis for the second assault charge, in Count 10. Both counts charged the appellant with assault causing bodily harm, but the Crown only sought a conviction for the included offence of common assault on Count 10. On both counts the trial judge acquitted the appellant of assault causing bodily harm and found him guilty of the included offence of common assault.

(4)         Evidence supporting the defence

[38]       The complainants’ mother, S.B., was called as a Crown witness but gave evidence supporting the defence. S.B. disputed N.S.’s evidence that N.S. ever told S.B. that the appellant was regularly sexually assaulting her. She testified that N.S. had once “alluded” to the appellant sexually assaulting her, but that when S.B. responded that by saying that she would take N.S. to the hospital and then to the police, N.S. “immediately started saying, well, nothing happened”.

[39]       The appellant also testified and denied sexually assaulting either of the complainants. However, he acknowledged that he had lost his temper and had physically assaulted N.S. on two occasions, although he disputed some of the details alleged by N.S.

[40]       The trial judge entirely disbelieved both S.B. and the appellant’s evidence, apart from the appellant’s acknowledgment of the physical assaults, and found that it did not raise a reasonable doubt in her mind.

(5)         The trial judge’s reasons for judgment

[41]       The trial judge acquitted the appellant of the charges arising out of S.S.’s allegation that he had once performed a vaginal examination on her. Although the trial judge entirely rejected the appellant and S.B.’s evidence that the appellant had only been examining an injury on S.S.’s upper leg, she concluded:

[T]he inconsistencies in the evidence about this event, together with the dearth of evidence as to why [S.S.] referred to it as a vaginal examination, leave me unable to decide what happened during this incident. I do not find that [S.S.] is lying about what she remembers about what happened, but I simply cannot be satisfied beyond a reasonable doubt that the defendant committed a sexual assault and related offences during this incident because the evidence, taken as a whole, leaves me unable to determine what happened.

[42]       The trial judge was also left with a reasonable doubt about the charges arising out of both complainants’ allegations that the appellant had touched them while they were in their mother’s bed. Her doubt arose in part because both complainants had told Cst. Everson in September 2002 that the appellant had not abused them. The trial judge explained:

Their denial to the police that any inappropriate touching or abuse occurred does tend to undermine the evidence of both complainants about what happened in the downstairs bed in the mornings. While there may be a perfectly credible explanation for why both girls have said what they said, it was not that they were influenced by their mother because she was not there and was not with them before they spoke to the police on September 24, 2002.

[43]       The trial judge returned to this point later in her reasons, explaining:

The issue here is not that the complainants did not disclose to the police when they were asked by Constable Everson whether they had been abused. The issue is that they said that they had not been abused. Those statements are inconsistent with the evidence at this trial. It may be that the complainants had a perfectly good reason for answering Constable Everson's questions as they did. I simply do not know what that reason might be. The complainants were not asked to explain their statements to Constable Everson. Understandably, given the passage of time, they would reasonably be unable now to recall why they told Constable Everson that they had not been abused by the defendant.

Whatever the reason or lack of reasonable explanation may be, it has not been communicated to me. This highlights the difficulties that exist when offences are prosecuted a very long time after the acts complained of. That is not anyone's fault. It is simply a fact. It leaves me unable to reconcile what was said to Constable Everson with the evidence at the trial. As I am unable to reconcile that contradiction, and in the absence of evidence that satisfies me beyond a reasonable doubt that the sexual assaults in the bed occurred as alleged, I'm required to give the benefit of the doubt to the defendant, and I do so.

[44]       However, the trial judge reached a different conclusion with respect to N.S.’s allegations that the appellant had forced oral sex and intercourse on her when she was older. The trial judge interpreted Counts 9 and 11 on the indictment as only capturing N.S.’s allegations of “acts of forced oral sex and forced intercourse”, which she described as “the highly intrusive sexual assaults”. She found that N.S.’s statements to Cst. Everson did not cause her to doubt these aspects of N.S.’s allegations, explaining:

I must consider the impact of the 2002 police report and the fact that both [S.S.] and [N.S.] told Constable Everson that the defendant had not abused them in any way, and [N.S.]'s statement a few days later that the defendant had never touched her inappropriately and that there has never been a suggestion of inappropriate touching.

[N.S.] did not allege that any of the highly intrusive sexual assaults, such as oral sex and intercourse, occurred prior to September 2002 when these statements were made, and the statements made to Constable Everson do not undermine the credibility and reliability of [N.S.]'s evidence about those later events. [Emphasis added.]

[45]       The trial judge returned to this point later in her reasons, stating:

It is not entirely clear to me exactly how old [N.S.] was when these highly intrusive acts began. She testified at one point that she was 16, but other parts of her evidence suggest it may have started earlier. Since these highly intrusive events could have occurred after [N.S.]'s 2002 statement to the police, which appears to have been focused on what was going on in the parental bed, her denial then that any abuse had occurred does not affect my analysis of the credibility and reliability of her allegations of offences that occurred after her 2002 interaction with the police. [Emphasis added.]

[46]       The trial judge concluded:

The uncertainty that exists with respect to the allegations of sexual assaults in the parental bed and the examination of [S.S.] does not exist with respect to [N.S.]'s allegations that the defendant forced her to engage in oral sex and intercourse with him. As I have noted, [N.S.]'s evidence about two of these events in Oshawa was candid, clear and convincing. These are events she would reasonably be expected to remember. I am satisfied beyond a reasonable doubt that the defendant is guilty of count 9.

[47]       As noted above, the trial judge also found the appellant guilty of common assault in relation to Counts 10 and 12, based in part on his having acknowledged assaulting N.S. in his trial testimony.

B.           Analysis

[48]       The appellant’s main ground of appeal is that the trial judge misapprehended the evidence at trial on the issue of whether the more intrusive sexual assaults alleged by N.S. had already commenced when N.S. made her two September 2002 police statements.

[49]       The trial judge found that N.S.’s statement to Cst. Everson that there had “never even been the suggestion” of inappropriate touching by the appellant was inconsistent with her testimony that the appellant had been sexually touching her in the parental bed since she was 14 years old. She treated this inconsistency as a major factor that contributed to her having a reasonable doubt about this aspect of N.S.’s allegations.

[50]       However, the trial judge found no similar inconsistency in relation to N.S.’s allegations of more invasive sexual contact by the appellant, when N.S. was older, on the basis that “these highly intrusive events could have occurred after [N.S.]'s 2002 statement to the police”. This conclusion rested on the trial judge’s finding that “[N.S.] did not allege that any of the highly intrusive sexual assaults, such as oral sex and intercourse, occurred prior to September 2002 when these statements were made”.

[51]       As Doherty J.A. explained in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

The appellant must show that the trial judge was “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey, at p. 541; see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[52]       I agree with the appellant that the trial judge misapprehended N.S.’s evidence about the timing of events. N.S. testified that the appellant began forcing oral sex and sexual intercourse on her when she was 16 years old, or perhaps even earlier. Since it was also an established fact that N.S. was 17 years old in September 2002, she was at least by implication alleging that some of these incidents occurred prior to September 2002, when she made her police statements.

[53]       My colleague Huscroft J.A. concludes that there was no real inconsistency between N.S.’s trial testimony and her September 2002 police statements, on the grounds that N.S. might have been mistaken about how old she was when the highly intrusive sexual assaults started. I agree that this was a possibility the trial judge was entitled to consider. However, that is not the approach she took. Rather, she dismissed the significance of the inconsistency on the erroneous basis that N.S. was not alleging that these sexual assaults began before September 2002. As a result, the trial judge did not grapple with the potential implications that would have flowed from a finding that the highly intrusive sexual assaults only started after September 2002, when N.S. would have been 17 years old. These included whether this scenario could be reconciled with the trial judge’s acceptance of N.S.’s evidence that the highly intrusive sexual assaults “happened about a couple of times a week for about four years”. It was undisputed that N.S. moved out of the family home when she was 19 years old, a little more than two years after her September 2002 police statements.

[54]       My colleague Huscroft J.A. concludes that because the trial judge “refrained from making a precise finding about when these assaults began, there was no inconsistency that had to be resolved in analyzing N.S.’s credibility and reliability”. I disagree, for two main reasons.

[55]       First, the inconsistency existed as a result of N.S.’s testimony about how old she was when the highly intrusive sexual assaults started. As I will discuss, I agree that there were various routes by which the trial judge could have properly concluded that the inconsistency did not ultimately affect the credibility or reliability of this aspect of N.S.’s evidence. However, the inconsistency could not simply be ignored or assumed out of existence.

[56]       Second, I disagree with my colleague Huscroft J.A. that the trial judge “refrained from making a precise finding about when these assaults began”. In my view, her reasons reveal that she dismissed the significance of N.S.’s September 2002 police statements in relation to the allegations underlying Counts 9 and 11 by implicitly finding that the highly intrusive sexual assaults must only have started later. This was a sufficiently “precise finding” to lead the trial judge to conclude that there was no inconsistency that needed to be resolved. The problem is that this finding was contrary to N.S.’s own testimony. We cannot start from the premise that the trial judge was determined to convict the appellant, and thus would have found some other way to reconcile N.S.’s allegations with her inconsistent police statements even if she had not misapprehended the evidence on this point.

[57]       Importantly, Crown counsel at trial did not argue that the trial judge should reject N.S.’s evidence about when the highly intrusive sexual assaults started, or suggest that the trial judge should find as fact that these assaults only started after N.S. made her September 2002 police statements. Rather, Crown counsel urged the trial judge to conclude that N.S. had not disclosed any of the sexual assaults to the police in September 2002 because she was afraid of the appellant. The trial judge did not adopt this suggestion, noting that neither N.S. nor S.S. had been asked to explain why they had told Cst. Everson that the appellant was not abusing them.

[58]       Crown counsel on appeal argues that even if the trial judge did misapprehend N.S.’s evidence on this point, this misapprehension was either not material, or did not play an essential part in her reasoning process.

[59]       The Crown makes three main arguments. First, Crown counsel points out that N.S. did not have a reliable memory of her age at other times. For example, N.S. testified that she was 18 years old when she left the family home in the fall of 2004, but it was undisputed that she was actually 19 years old. The Crown argues that N.S. might have been similarly mistaken about her age when the highly intrusive sexual assaults began, and that it was thus open to the trial judge to reject N.S.’s testimony that these assaults started when she was 16 years old, and find that they only started after when N.S. was 17 years old, after she had made her police statements in September 2002.

[60]       Second, the Crown argues that it was open to the trial judge to treat N.S.’s allegations about the highly intrusive sexual assaults differently from her allegations about sexual touching in the parental bed, because those allegations had other frailties. As the trial judge noted in her reasons, there were inconsistencies between N.S. and S.S.’s evidence about matters such as where they had been positioned in the bed, the clothes they and other people had been wearing, and whether there had been a bedsheet separating the children from the adults. The trial judge had a reasonable doubt about both complainants’ allegations of sexual touching in the parental bed based on the combined effect of all of the inconsistencies, not just the inconsistencies between the complainants’ trial evidence and their September 2002 police statements.

[61]       In contrast, N.S.’s allegations about the highly intrusive sexual assaults were not contradicted by other evidence, other than the testimony of the appellant and S.B., which the trial judge rejected. As the trial judge noted, there was no realistic prospect that N.S. could have been honestly mistaken about whether the highly intrusive sexual assaults had occurred.

[62]       Third, the Crown emphasizes that the trial judge made favourable findings about N.S.’s testimonial credibility, stating:

She was a generally honest and sincere witness who, understandably, was unable to recount events with perfect accuracy, not because she was fabricating her account, but because many years have passed since the events occurred and that has, to some extent, affected the reliability [of] some of her memory.

The trial judge also described N.S.’s evidence about the highly intrusive sexual assaults as “unshaken”, “detailed”, and “compelling”.

[63]       I agree with the Crown that there were multiple alternative reasoning paths the trial judge could have taken to find the appellant guilty of committing the highly intrusive sexual assaults alleged by N.S., one of which would have been to find that N.S. was mistaken about how old she was when these sexual assaults began. In my view, however, our focus must be on the reasoning path that the trial judge actually followed.

[64]       The problem here is that the trial judge evidently viewed the inconsistency between N.S.’s September 2002 police statements and her other allegations at trial as a significant concern that contributed to the trial judge being left with a reasonable doubt on the other sexual offence charge relating to N.S., Count 8. In relation to the allegations underlying Counts 9 and 11, the trial judge addressed this concern in her own mind by finding that there was no inconsistency between N.S.’s police statements and her evidence about the highly intrusive sexual assaults, on the grounds that N.S. “did not allege that any of the highly intrusive sexual assaults, such as oral sex and intercourse, occurred prior to September 2002 when these statements were made”. This was a palpable error: N.S.’s evidence was that these assaults began when she was 16, which on the undisputed evidence was before she made her police statements, at age 17.

[65]       I am also not prepared to assume that if the trial judge had not made this error she would inevitably have made the factual findings that would have been necessary for her to follow the alternative paths to conviction relied on by the Crown at trial or on appeal.

[66]       The Crown’s argument at trial was that it was understandable why N.S. would have lied to the police in September 2002 and falsely told Cst. Everson that the appellant had never touched her inappropriately, even if in reality he was by this time forcing oral sex and intercourse on her multiple times a week. However, the trial judge expressly found that she was unable to decide why N.S. said what she did to Cst. Everson. We cannot speculate that the trial judge would have reached a different conclusion if she had treated N.S.’s police statement as inconsistent with her allegations at trial about both highly intrusive sexual assaults and the parental bed allegations.

[67]       On appeal, the Crown argues that it was open to the trial judge to reject N.S.’s evidence that she was 16 years old when the highly intrusive sexual assaults began. However, if the trial judge had rejected this aspect of N.S.’s testimony as unreliable, this would not, in itself, have constituted evidence that these sexual assaults only started after N.S. had made her police statements in September 2002. Moreover, since N.S. testified that the highly intrusive sexual assaults stopped after she moved out of the house, and since it was undisputed that this happened in the fall of 2004, the trial judge would have had to consider whether this factual finding could be squared with her own finding that the highly intrusive sexual assaults “happened about a couple of times a week for about four years”. The trial judge would also have had to take into account N.S.’s evidence that these assaults began shortly after she disclosed her loss of virginity to the appellant, and assess whether N.S. was likely to have been mistaken about her age at the time of this significant life event.

[68]       I accept that the trial judge could have decided on the evidence as a whole that N.S. was mistaken both about when the highly intrusive sexual assaults started, and about for how long they continued. However, it was not inevitable that she would have done so.

[69]       Moreover, while it is true that the trial judge found N.S. to be an “honest and sincere” witness, I cannot speculate about how her assessment of N.S.’s testimony might have changed if she had properly grappled with the inconsistency between N.S.’s evidence about when the highly intrusive sexual assaults began, and N.S.’s September 2002 statements to the police that the appellant had never abused her or touched her inappropriately. The trial judge’s finding that N.S.’s statements to Cst. Everson “do not undermine the credibility and reliability of [N.S.’s] evidence” about the highly intrusive sexual assaults was tied to her mistaken belief that N.S. “did not allege that any of the highly intrusive sexual assaults … occurred prior to September 2002”. I cannot be confident that the trial judge would necessarily have reached this same conclusion had she not misapprehended N.S.’s evidence on this point.

[70]       In summary, I conclude that the appellant has met his burden of demonstrating that the trial judge’s misapprehension of the evidence played an essential part in the reasoning process she followed to convict him on Count 9. He is not required to prove that he would necessarily have been acquitted on this count if the trial judge had not made this error. Rather, it is sufficient that he demonstrate that his conviction was not inevitable: see e.g., R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at para. 28. I am satisfied that he has done so.

[71]       I would accordingly allow the appeal, set aside the appellant’s conviction on Count 9, lift the conditional stay of proceedings entered by the trial judge on Count 11, and order a new trial on these two counts.

Released: April 28, 2025 “G.H.”

“J. Dawe J.A.”