R. v. M.L., 2019 NLCA 33

M.L. (appellant) v. Her Majesty the Queen (respondent) (18/50) Indexed As: R. v. M.L. 2019 NLCA 33 4 C.A.N.L.R. 448 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., White and Goodridge JJ.A. May 23, 2019 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identity the person described in this judgment as the complainant shall not be published in any documents, broadcast or transmitted in any way.

Summary: Following a seven day trial, the appellant was convicted of two counts of sexual interference (

section 151 of the Criminal Code ), two counts of sexual exploitation ( section 153(1) ) and two counts of sexual assault (

section 271 (a)) against his stepdaughter. The appellant appeals, arguing that the convictions should be set aside on the basis that the verdicts are unreasonable or cannot be supported by the evidence, were based on errors of law, and that there has been a miscarriage of justice. Held: Appeal dismissed. Goodridge J.A. (Fry C.J.N.L. and White J.A. concurring): The issues raised by this appeal, dealing with misapprehension of evidence and credibility assessments involve findings of fact. They engage a standard of review of palpable and overriding error.

The issues raised by this appeal, dealing with mixed fact and law are also subject to a standard of palpable and overriding error unless the trial judge made some extricable error in principle. The appellant alleges a number of instances of misapprehension of the evidence. None of the examples provided by the appellant amounts to a misapprehension of evidence going to the substance of the charges. The trial judge’s reasons are not required to discuss and analyze every piece of evidence. The reasons are required only to show why the judge decided as he did.

The trial judge made no mistake as to the substance of the evidence or any other readily obvious error. The inferences drawn are not inconsistent with the evidence. Not every judge might have drawn the inferences that the trial judge did. However, this is not the legal test and it is not a sufficient basis upon which to find a misapprehension of evidence or miscarriage of justice. The appellant says that the trial judge made palpable and overriding errors in assessing the credibility of the complainant, by failing to address inconsistencies.

A trial judge is entitled, and indeed is required, to assess the credibility of the witnesses that appear before him or her. The trial judge was attuned to the inconsistencies, and acknowledged the appellant’s argument that inconsistencies were a cause for concern. The trial judge did not address every inconsistency, but his reasons overall illustrate that the core of the allegations were unaffected by the inconsistencies. Many of the examples listed by the appellant were new details revealed at trial rather than inconsistencies.

Some of the inconsistencies related to peripheral matters, and did not warrant any comment by the trial judge. None of the alleged inconsistencies raised by the appellant amounts to a palpable and overriding error. The trial judge adequately addressed the appellant’s argument relating to inconsistencies. There was no palpable and overriding error in assessing the credibility of the complainant.

The appellant argues that the trial judge applied a stricter standard in assessing the appellant’s credibility, compared to the standardapplied to the complainant, and in that way shifted the burden of proof. The trial judge did not shift the burden of proof to the appellant.The trial judge reviewed the main features of the testimony from all witnesses, and identified the key areas where he rejected theappellant’s testimony, and accepted the complainant’s testimony. Part of the overall credibility assessment of the appellant wasinfluenced by acts of dishonesty unrelated to the allegations.

I agree that these were peripheral matters, but, in the circumstances, it wasnot an error to consider these earlier acts of dishonesty in the overall credibility assessment. The trial judge assessed the credibility of the witnesses in the context of all of the evidence offered at trial. The trial judge made nomistakes as to the substance of the evidence and drew inferences that were not inconsistent with the evidence. Deference is owed to thetrial judge who had the advantage of observing and hearing the witnesses first-hand.

The appellant has not demonstrated that the decisionreached by the trial judge was an unreasonable verdict or one not supported by the evidence. The trial judge committed an error of law in taking judicial notice of how or whether telecommunication companies store text messages.However, the error was not material to the decision and no consequences flow from it. There is no basis to interfere with the decision of the trial judge. The appeal should be dismissed. Cases cited: R. v. Phelan, 2013 NLCA 33, 337 Nfld. & P.E.I.R. 64 H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 Ring v.

Canada (Attorney General), 2010 NLCA 20, 297 Nfld. & P.E.I.R. 86 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 Cleary v. Courtney, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85 R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 R. v. Lee, 2010 SCC 52, [2010] 3 S.C.R. 99 R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.) R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 R. v.

Dvorak, 2001 BCCA 347, 156 C.C.C. (3d) 286 R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716, 148 D.L.R. (4th) 423 R. v. Calnen, 2019 SCC 6 R. v. Burke, (SCC), [1996] 1 S.C.R. 474 R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 Counsel: Mark Gruchy, for the appellant; Arnold Hussey Q.C., for the respondent. This appeal was heard on February 20, 2019 before Fry C.J.N.L, White and Goodridge JJ.A.

The following judgment was filed on May 23, 2019 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [ 1 ] On March 7, 2018, following a seven day trial, the appellant was convicted of two counts of sexual interference (

section 151 of the Criminal Code ), two counts of sexual exploitation (section 153(1)) and two counts of sexual assault (section 271(a)) ( 2018 NLSC 48 ).

The sentence imposed was six years in jail ( 2018 NLSC 150 ). [ 2 ] The complainant, S.R., was the appellant’s stepdaughter. [ 3 ] The appellant argues that the convictions should be set aside on the basis that the verdicts are unreasonable or cannot be supported by the evidence, were based on errors of law, and that there has been a miscarriage of justice. [ 4 ] The appellant identifies the following as errors by the trial judge, in support of his submission that the conviction ought to be set aside: ● Misapprehension of Evidence – misapprehended evidence, failed to consider relevant evidence, and drew inferences not supported by the evidence, resulting in an unreasonable verdict and a miscarriage of justice; ● Inconsistencies in the Evidence – made palpable and overriding errors in assessing the credibility of S.R., by failing to properly consider inconsistencies in her testimony; ● Shifting the Burden of Proof – made palpable and overriding errors in rejecting the appellant’s testimony, to the point that the burden of proof shifted; and ● Judicial Notice – took judicial notice of a controverted fact, viz. , that telecommunication companies did not store customer text messages. [ 5 ] For the reasons that follow, I would dismiss the appeal.

There is no basis to intervene. BACKGROUND [ 6 ] S.R. testified that, beginning in early 2012 when she was 15 years old and continuing until April 2015 when she was 18 years old, she had frequent sexual contact with the appellant. During those three years, S.R. says there was vaginal intercourse, or other forms of sexual contact, nearly every day or every other day, when the appellant was not out of town for work.

There were a few times during those years when S.R. attempted to end the sexual contact, but the appellant would give her the cold shoulder treatment until she complied: A few times where I would try and stop it and when I stopped it, he went cold … he wouldn’t hug me; he didn’t want to play video games with me; he didn’t want to watch movies with me. And those were things that I wanted. I wanted a father. I wanted to have someone to hang out with, to be your best friend in your house and talk to you. So then, I would have sex with him again and he was back to the way he was.

He was smiling; he was hugging me; he would talk to me again. [ 7 ] On May 27, 2015, S.R. disclosed to her mother all the details of the sexual relationship she had with the appellant. The police were notified, and the appellant was arrested and charged. [ 8 ] S.R. testified that in early 2012, just before her sexual relationship with the appellant began, she confronted him about the discovery of a hidden camera that he had set up in her bedroom closet. The camera lens was positioned to record S.R., or others, coming out of the shower.

During the exchange about the discovery of this hidden camera, S.R. disclosed to the appellant that she had sexual intercourse with his half-brother during the Christmas holidays of 2011. Disclosure of this incident to the appellant was significant to S.R. She testified: “I’d never been through anything like this before; I had no idea what was going to happen; I felt so ashamed of myself ... I didn’t know what to do.” [ 9 ] S.R. claims that the appellant’s response, and advice, was to keep the matter between them only, and not disclose the incident to her mother, or to anyone else.

S.R. says that the appellant warned her that any further disclosure could lead to the destruction of their family unit. S.R. recalled that a “pro-con list” was prepared by the appellant to illustrate the benefits flowing from non-disclosure, and the harm flowing from disclosure. S.R. testified that one of the benefits listed was along the lines: My half-brother got to have sex with you; why shouldn’t I get to have sex with you, too? [ 10 ] S.R. did not disclose the December 2011 incident to anyone besides the appellant. About two months after disclosing this incident to the appellant, during the St.

Patrick’s Day weekend of 2012, S.R. says that she had the first occasion of sexual intercourse with the appellant: My mother and my sister went to bed and I stayed up. [The appellant] wanted to play a drinking game, I think it is called the Century Club … you take a shot of beer every minute … I was getting more drunk and more drunk. He started massaging me and I did not know what to say and it went from there … So he began touching me … between my legs … I was scared. I didn’t say no. I didn’t know what to say.

I didn’t know what to do … We had sex … vaginal sex … That continued then for three years … He was gone for two weeks at a

time … but when he was home it was almost every day or every other day … sexual intercourse, anal [sex], oral sex, everything underthe sun. [11] The appellant denies all of this, testifying, “There was never any sexual contact between us”. [12] The appellant claims that S.R. made false allegations against him as

an act of revenge, because he had contacted a male withwhom S.R. had been communicating over social media when she was 18 years old. [13] A few weeks prior to S.R. reporting the allegations to her mother, the appellant had a confrontation with S.R. about her “sexting”and sending intimate images to a male on social media. After the confrontation, the appellant sent a Facebook message to that maleadvising him that S.R. was his 18-year-old stepdaughter and “sending you these pictures … it’s not proper”.

This intervention by theappellant, communicating directly with S.R.’s friend, “made her extremely, extremely angry at me”. The appellant claimed that the falseallegations that S.R. made against him are “all over me going hard on her and phoning that boy she was sending sexting to [sic] andnaked pics”. [14] The appellant admitted that S.R. disclosed to him, early in 2012, that she had sexual intercourse with his half-brother during theChristmas holidays of 2011.

He denied that he encouraged S.R. not to tell her mother, or anyone; he denied making any pro-con list; hedenied stating to S.R. that “My half-brother got to have sex with you; why shouldn’t I get to have sex with you, too?”. [15] The appellant admitted that he engaged in discussions with S.R. about the consequences of disclosure of the allegations involvinghis half-brother, and that initially, he did not know what to do.

He testified: I didn’t know what to do because if it was true, you know, the family would be tore up and [my half-brother] would be going to jail.[S.R.] would be, probably, kicked out of the house; the family would be tore apart. [16] Soon after S.R. told the appellant about the December 2011 incident, the appellant contacted his half-brother and told him thathe was not permitted around the house anymore. A few days later, the appellant said he determined that the appropriate course of actionwas to tell S.R.’s mother about the incident, and to make a formal complaint to the police.

When he recommended this course of actionto S.R., she responded, he claimed, with a threat along the lines of: If you tell on me and I am kicked out of the house, then I am going tosay that you did it to me too. That was the end of the matter. The appellant decided not to disclose the allegation to the police, or S.R.’smother, or anyone. It remained a secret between the appellant and S.R. until S.R. disclosed all to her mother, L.R., on May 27, 2015.Even when L.R. inquired of the appellant as to why the half-brother had discontinued his visits, the appellant gave no explanation.

STANDARDS OF REVIEW [17] The issues raised by this appeal, dealing with misapprehension of evidence, engage findings of fact. Findings of fact cannot bereversed on appeal unless the trial judge has made a palpable and overriding error, i.e. an error that is plainly identifiable and affected theresult, see R. v. Phelan, 2013 NLCA 33, 337 Nfld. & P.E.I.R. 64, at para. 14, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1S.C.R. 401, at paras. 55-56; Ring v.

Canada (Attorney General), 2010 NLCA 20, 297 Nfld. & P.E.I.R. 86, at para. 6, and Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. [18] The issues raised by this appeal, dealing with credibility assessments, also engage findings of fact. As Cameron J.A. stated atpara. 15 of Cleary v.

Courtney, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85: “Findings of credibility are part of the fact finding process andare subject to the same standard of review …” [19] The issues raised by this appeal, dealing with mixed fact and law are also subject to a standard of palpable and overriding errorunless the trial judge made some extricable error in principle with respect to the characterization of the legal standard or its application(Housen at para. 37).

ANALYSIS Misapprehension of Evidence [20] The appellant says there was a misapprehension of evidence leading to a miscarriage of justice. [21] A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider relevant evidence, ora failure to give proper effect to evidence (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 13). It is insufficient that the judgemay have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). A misapprehension of the evidence isnot to be confused with a different

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52, [2010]3 S.C.R. 99, at para. 4). [22] In R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, at para. 93 (Ont. C.A.), DohertyJ.A. stated: “If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it mustfollow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.” In R. v.

Lohrer, 2004 SCC 80,[2004] 3 S.C.R. 732, at paras. 3–4, Binnie J. agreed with this statement of Doherty J.A. but added that: “The misapprehension of theevidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.” See also comments of Hoegg J.A. at paras. 20 and 21 of R. v. Vokurka, 2013 NLCA 51, upheld by the Supreme Court of Canada at 2014SCC 22. [23] The appellant identifies the following as examples of a misapprehension of evidence by the trial judge, going to the substance of

the charges: ● Failed to consider text messages from the phones of S.R. and L.R; ● Failed to consider inconsistencies between S.R.’s testimony of what happened and L.R.’s testimony of what S.R. had told her happened; ● Failed to consider L.R.’s testimony that the appellant drowned a pet cat; ● Failed to consider S.R.’s pre-trial statement that she had initially forgotten about an incident prior to the alleged sexual activity where the appellant accessed a sexual video S.R. had taken of herself, and then approached her in a way that she found disturbing; ● Failed to consider L.R.’s testimony that she did not hear or see the alleged sexual activity occurring within the family home; ● Failed to give proper effect to the audio recorded evidence, created in early 2012, of the appellant stating to S.R.: “If you goes to the cops and falsely accuses me of molesting you…”; ● Failed to give proper effect to the evidence that the appellant had told L.R. about the sexual encounter between his half-brother and S.R.; and ● Failed to give proper effect to S.R.’s testimony that the hidden camera was located in her closet. [ 24 ] In my view, none of the examples provided by the appellant amounts to a misapprehension of evidence going to the substance of the charges .

There is no error that is "readily obvious" ( Sinclair at para 53 ). [ 25 ] I deal separately with each of the alleged misapprehensions raised by the appellant, in the order as listed above. [ 26 ] The text messages were acknowledged by the trial judge, in paras. 4 and 63 of his reasons, but without comment on the content. The text messages were uncontroversial for the most part, and of limited evidentiary value to the overall picture. The messages reveal that L.R. was upset following S.R.’s disclosure of the allegations, and was seeking an explanation from the appellant.

The reply text messages from the appellant include denials -- “I never did [sleep with S.R.]”, and non-denials when asked by L.R. to explain why he had sex with S.R. -- “I don’t understand it at all”. [ 27 ] The trial judge’s reasons are not required to discuss and analyze every piece of evidence. The reasons are required only to show why the judge decided as he did. As stated by McLachlin C .J.C. for the court in R. v.

R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , at para. 20 : “[T]he trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.” [ 28 ] The acknowledgment by the trial judge of the text messages indicates that the evidence was considered. The text messages were a small part of the overall picture.

The failure to analyse the content of the messages does not indicate a misapprehension of evidence. [ 29 ] L.R.’s testimony, based on what she recalled S.R. telling her, was that S.R. resisted by hitting the appellant. At trial S.R. testified that she had not resisted. This is an inconsistency comparing the testimony of two witnesses. It is not an inconsistency within S.R.’s testimony. This inconsistency was peripheral to the core allegations, and was not fully explored on cross-examination. The different recollection of L.R., as to what S.R. disclosed, was not put to S.R. during cross-examination.

No prior statement of S.R., indicating that she resisted, was put to S.R. on cross-examination, presumably because no prior recorded statement to that effect existed. The inconsistency may relate to L.R.’s recall, or perhaps L.R.’s misunderstanding. It was not explored. The trial judge acknowledged in his reasons that there were some inconsistencies. He was not required to address each specific inconsistency provided they did not go to the core findings at issue. [ 30 ] The trial judge made no comment on the testimony of L.R. that the appellant drowned a pet cat.

That evidence is not relevant to any issue the judge had to decide. The judge’s lack of comment on this testimony is not a misapprehension of evidence. [ 31 ] S.R. disclosed in her statement to police that she had recalled, a few weeks prior to giving her statement, about producing a video with intimate images of herself and the appellant accessing it. This was not relevant to any issue the judge had to decide. It was peripheral and the failure to consider it is of no consequence. [ 32 ] The trial judge did not address L.R.’s failure to hear or otherwise detect the alleged sexual activity.

S.R. testified that all but one of her sexual encounters with the appellant occurred within the family home and that her mother (L.R.) was at work, school, or gone to bed, when the sexual activity occurred. L.R. testified that she heard nothing and explained it on the same basis: “I was doing my degrees and I was doing second jobs … I guess I was just tired at the end of the day”. The fact that the trial judge did not acknowledge this testimony in his reasons does not amount to a misapprehension of evidence.

He accepted the evidence of S.R. that the sexual activity continued in the family home, undetected, over the period of three years. That factual finding, based on the evidence that was accepted, is not a misapprehension of evidence. [ 33 ] A covert audio recording made by the appellant in early 2012, the appellant submits, was not given proper effect as evidence. The appellant’s position is that the audio recording exposes that S.R. threatened to falsely accuse him of sexual assault, and corroborates his testimony on that point.

The recording is mostly of the appellant speaking, as he engages S.R. the moment she enters the home, and ends with S.R. saying: “I don’t want anything to happen to the family”. Her responses during the conversation are short and cryptic, and not obvious as to meaning. Her responses did not include any threat to falsely accuse the appellant of sexual assault. [ 34 ] The trial judge discussed the content of the audio recording, the testimony of the appellant, and the testimony of S.R., at paras. 100 to 102 of his reasons, and rejected the appellant’s explanation as to what was being discussed.

The trial judge found that the appellant’s explanation of the content for the audio “does not accord with the preponderance of possibilities [and] makes no logical

sense”. The trial judge found that the audio was created in response to the appellant’s concern that he would be reported for secretly videotaping S.R. coming out of the shower. This

interpretation is different from the

interpretation suggested by the appellant, but is not unreasonable considering the testimony of S.R. She testified that the appellant had secretly video taped her naked body around the same time that this audio recording was made. When S.R. discovered the hidden camera and confronted the appellant, he expressed concern that S.R. would report him: “ You’re not going to tell your mother are you?” The

interpretation and inferences drawn by the trial judge can be supported by the evidence and do not amount to a misapprehension of evidence. [ 35 ] The comment of the trial judge that the appellant never disclosed the December 2011 incident (sexual intercourse with his half- brother) to L.R. is not a misapprehension of evidence. It is consistent with the evidence.

In the May 27, 2015 text message of 11:41 P.M., the appellant acknowledges to L.R. that he had not disclosed this incident to her: “Yes I did wrong by not telling you about [the December 2011 incident]”. [ 36 ] The comment of the trial judge that the appellant had been secretly recording S.R. in the shower is not a misapprehension of evidence. It is consistent with the evidence of S.R.

She testified that she discovered a hidden camera set up in her closet, with the lens positioned “to catch me naked coming from the shower”. [ 37 ] The trial judge made no mistake as to the substance of the evidence or any other readily obvious error. The inferences drawn are not inconsistent with the evidence. Not every judge might have drawn the inferences that the trial judge did. However, this is not the legal test and it is not a sufficient basis upon which to find a misapprehension of evidence or miscarriage of justice.

Inconsistencies in the Evidence [ 38 ] The appellant says that the trial judge made palpable and overriding errors in assessing the credibility of S.R., by failing to address inconsistencies. A trial judge is entitled, and indeed is required, to assess the credibility of the witnesses that appear before him or her. As stated by Bastarache and Abella JJ. for the majority in R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621 , at para 20 : Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. [ v. Canada (Attorney General) , 2005 SCC 25 ], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 39 ] The trial judge was attuned to the inconsistencies, and acknowledged the appellant’s argument that inconsistencies were a cause for concern.

The trial judge did not address every inconsistency, but his reasons overall illustrate that the core of the allegations were unaffected by the inconsistencies. [ 40 ] Many of the examples listed by the appellant were new details revealed at trial rather than inconsistencies. The trial judge acknowledged that while new details were revealed at trial, this was simply the result of S.R. remembering additional details as she was testifying, or responding to specific questions.

He acknowledged: “It would be unusual that any person could accurately describe what happened in each and every instance of sexual activity over such a protracted period of time”. [ 41 ] Some of the inconsistencies related to peripheral matters, and did not warrant any comment by the trial judge. [ 42 ] On the entirety of the evidence, the allegations remained intact, despite the inconsistencies. [ 43 ] The appellant identifies the following as examples of inconsistencies amounting to palpable and overriding errors in assessing the credibility of S.R.: ● S.R.’s testimony that the appellant touched her or attempted to touch her in early 2012 was inconsistent with her pre-trial statement where this incident was not mentioned; ● S.R.’s testimony that she did not resist, was inconsistent with her pre-trial statement that the appellant “convinced” her to have sex; ● S.R.’s deletion of text messages that were incriminating of the appellant is inconsistent with her testimony that she wanted to pursue criminal charges; ● S.R.’s testimony that she engaged in anal sex with the appellant, and afterwards was bleeding, is inconsistent with her pre-trial statement and preliminary inquiry evidence where this was not mentioned; ● S.R.’s testimony that the appellant warned that she would be separated from her dog (“[it] is gonna be gone”) if the December 2011 incident (sexual intercourse with the accused’s half-brother) was disclosed is inconsistent with her pre-trial statement and preliminary inquiry evidence where this was not mentioned; ● The sexual encounter at Northern Bay Sands is inconsistent with her pre-trial statement and preliminary inquiry evidence where this was not mentioned; ● S.R.’s testimony about the appellant’s use of Viagra was inconsistent with the testimony of L.R.; and ● S.R.’s testimony that the appellant “was trying to convince me to do [double penetration]” was internally inconsistent with her testimony that “it might have happened”. [ 44 ] In my view, none of the above alleged inconsistencies raised by the appellant amounts to a palpable and overriding error.

I deal separately with each, in the order as listed above. [ 45 ] S.R. testified at trial that the appellant touched her or attempted to touch her in early 2012, around the time of the “pro-con” list. This was a new detail revealed at trial. It was not an inconsistency. The evidence of S.R. implied that this early 2012 incident was

relatively minor, and insignificant in comparison to the subsequent events. The trial judge noted that it would be unusual to recall eachincident over a three-year period. [46] S.R.’s pre-trial statement said that the appellant “convinced” her to have sex, while her trial evidence was that she did not resist.This subtle difference was explained by S.R. during cross-examination: “The convincing

part is him massaging me”. That was areasonable explanation and not an inconsistency. [47] S.R.’s deletion of potentially incriminating text messages was addressed by the trial judge at paras. 50 and 87 of his reasons. S.R.explained that she deleted the messages after reporting the allegations to her mother because she wanted “to move on with my life” and“just didn’t want to look at them anymore”. In retrospect, she regretted the action. The trial judge acknowledged in his reasons that, atthe time, S.R. felt that deletion of the messages was appropriate.

The judge was alive to this point and it did not adversely affect theassessment of S.R.’s overall credibility on the core issues. [48] S.R.’s testimony that she engaged in anal sex with the appellant, and afterwards was bleeding, is not an inconsistency but is anew detail reported at trial. [49] S.R.’s testimony that the appellant warned that she would be separated from her dog, and that the dog “is gonna be gone”, if theDecember 2011 incident was disclosed, is not an inconsistency.

It is a new, and relatively minor, detail reported at trial. [50] The Northern Bay Sands incident is not an inconsistency, but is a new detail reported at trial. S.R. recalled that there was a singlesexual encounter at Northern Bay Sands. S.R. testified, “I remember the [Northern Bay Sands] incident because we were upstairs and hewas trying all this new sexual stuff”. The fact that the trial judge planned to discuss this incident later in his judgment, but did not, is ofno consequence. [51] The testimony of L.R. and S.R. about the appellant’s use of Viagra was not an inconsistency.

Both L.R. and S.R. testified that theappellant initially denied to them that he was using Viagra. The comment of L.R. that “I don’t know if [S.R.] told me that she knew hewas taking Viagra or if she told me that he told her the same lie about the Viagra”, is not indicative of any inconsistency in S.R.’sevidence. [52] S.R.’s testimony that the appellant “was trying to convince me to do [double penetration]” is, arguably inconsistent with her latertestimony that “[double penetration] might have happened”. It is a detail in a three-year sexual relationship that involved frequent use ofsex toys.

This arguable inconsistency is of no major consequence in the overall credibility assessment. It is one small piece in the largepicture. [53] The trial judge did not discuss every subtle inconsistency, but it is clear from his reasons that he was alive to the arguments of theappellant’s counsel that there were inconsistencies. The trial judge adequately addressed the appellant’s argument relating toinconsistencies. There was no palpable and overriding error in assessing the credibility of S.R.

Shifting of the Burden of Proof [54] The appellant argues that the trial judge applied a stricter standard in assessing the appellant’s credibility, compared to thestandard applied to S.R., and in that way shifted the burden of proof.

The appellant points toward the judge’s reliance on acts ofdishonesty by the appellant that were unconnected with the charges, viz., dishonesty about smoking, about Viagra, and aboutemployment, as indicative of a stricter standard. [55] The trial judge, at para. 74, correctly paraphrased the well-established three-part analysis to considering the guilt of an accusedwho elects to testify, as stated by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742: 1. If you believe the evidence of the accused, you must acquit. 2.

If you do not believe the evidence of the accused, but are left in reasonable doubt by it, you must acquit. 3. If you do not believe the accused, and are not left in reasonable doubt by his/her evidence, then you must still determine whetheryou are left in reasonable doubt by the evidence that you do accept. [56] In assessing the credibility of the accused, the trial judge relied on acts of dishonesty unrelated to the allegations. The fact that anaccused has told lies is evidence of bad character, which must be approached with caution.

Courts have been reluctant to receive suchevidence, as it can invite the temptation of propensity reasoning that because an accused is a bad person, he or she is more likely to havecommitted the offence. [57] For example, in R. v. Dvorak, 2001 BCCA 347, 156 C.C.C. (3d) 286, the British Columbia court of appeal considered a situationwhere the Crown called evidence establishing the accused as an “experienced liar”. The court of appeal held that, as the accused’scharacter was not put into issue, the Crown was not justified in leading evidence of bad character.

The court of appeal further held thatthis error would not have warranted appellate intervention if the trial judge had provided the jury with a “clear, sharp warning that theywere not entitled to use his lies as evidence that he was more likely to have committed the offences with which he was charged”. [58] Because of this temptation to propensity reasoning, evidence of bad character is presumptively inadmissible.

This presumption issubject to a number of exceptions. [59] In the present case, there is no assertion by the appellant that the evidence of bad character was improperly received intoevidence. [60] It is clear from his reasons that the trial judge confined his reliance on the unrelated lies to the issue of credibility. As stated byCory J. for the majority of the Supreme Court of Canada in R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716, 148 D.L.R.

(4th) 423, bad character evidence can be considered in the credibility assessment, so long as the evidence is properly before the trier offact: The trier of fact will consider all the evidence before it in assessing the general credibility of witnesses, including the accused. A judgesitting alone or a jury has the opportunity to observe demeanour, to hear the testimony of the witnesses and to assess all the evidencepresented. All of this will be taken into account in assessing the credibility of the accused, or any other witness.

Testimony as to badcharacter will not be the only evidence that is relevant to credibility. It may be contradicted by the accused's demeanour, or by otherevidence supporting the accused. It will simply be one factor among many that will lead the trier of fact to form an impression as to thetruthfulness of the accused. Provided an appropriate direction is given, it does not materially increase the risk that the accused will beconvicted on the basis of her disposition, rather than for committing the acts that are the subject of the charge.

As long as evidence of bad character is properly before the jury on an issue in the case, and its prejudicial effect is outweighed by itsprobative value, then a jury should not be prevented from using the evidence to assess the credibility of the accused. [61] This common sense proposition was recently re-affirmed by the Supreme Court of Canada in R. v. Calnen, 2019 SCC 6, at para.64. [62] The trial judge did not shift the burden of proof to the appellant. The trial judge did what was expected, and made credibilityassessments based on the evidence before him.

The trial judge reviewed the main features of the testimony from all witnesses, andidentified the key areas where he rejected the appellant’s testimony, and accepted S.R.’s testimony. Part of the overall credibilityassessment of the appellant was influenced by acts of dishonesty unrelated to the allegations. I agree that these were peripheral matters,but, in the circumstances, it was not an error to consider these earlier acts of dishonesty in the overall credibility assessment.

Unreasonable Verdict [63] The appellant submitted that the trial judge arrived at an unreasonable verdict due to cumulative misapprehensions of theevidence that were central to the trial judge’s credibility findings. I have already expressed my view, above, that there was nomisapprehension of evidence. I add here a few comments on the appellant’s arguments of unreasonable verdict based on credibilityfindings. [64] A court of appeal owes great deference to the trial judge’s assessment of credibility.

It is only where the trial judge’s findings"cannot be supported on any reasonable view of the evidence” that the court of appeal is justified in intervening and declaring the verdictunreasonable (see R. v. Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [65] In R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at para. 21, McLachlin J. for the court stated the test forunreasonable verdict based on credibility findings: The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted?

That said, in applying the testthe court of appeal should show great deference to findings of credibility made at trial. This court has repeatedly affirmed the importanceof taking into account the special position of the trier of fact on matters of credibility (citations omitted). The trial judge has theadvantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. [66] In R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, Cromwell J., for the court, also commented on the test for unreasonable verdictbased on credibility findings. W.H. was a sexual assault trial.

A jury rendered a verdict of guilt, but an appeal to this Court determinedthat the verdict was unreasonable and entered an acquittal. On further appeal, the Supreme Court of Canada restored the jury verdict ofguilt. At paras. 30 and 38 Cromwell J. stated: 30 The traditional test for unreasonable verdict applies to cases such as this one in which the verdict is based on an assessment of witnesscredibility. This was affirmed, in the context of a judge-alone trial, in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p.131.

However, in applying the test, the court of appeal must show great deference to the trier of fact’s assessment of witness credibilitygiven the advantage it has in seeing and hearing the witnesses’ evidence: W. (R.), at p. 131. … 38 As outlined earlier, the test to be applied by courts of appeal in reviewing guilty verdicts for unreasonableness is clear and wellsettled. It does not involve the reviewing court attempting to put itself in the place of an imaginary trial judge and on a review of thewritten record asking whether that imaginary judge could have articulated legally adequate reasons for conviction.

Not only is thisapproach contrary to binding authority, it is also, as I see it, fundamentally flawed. [67] The trial judge assessed the credibility of the appellant, S.R. and L.R. in the context of all of the evidence offered at trial. Thetrial judge made no mistakes as to the substance of the evidence and drew inferences that were not inconsistent with the evidence.Where, as here, there is no misapprehension of the evidence, it is not the role of this Court to re-weigh the evidence relative to credibilityunless there is no evidentiary basis for the conclusion on credibility that was reached.

Deference is owed to the trial judge who had theadvantage of observing and hearing the witnesses first-hand. [68] The appellant has not demonstrated that the decision reached by the trial judge was an unreasonable verdict or one not supportedby the evidence. Judicial Notice [69] The trial judge took judicial notice of practices within the telecommunications industry regarding storage of text messages. Iagree with the appellant that this is not the type of fact of which the court can take judicial notice. The test for judicial notice adopted inCanada is set out in R. v.

Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, per McLachlin C.J.C. for the court:

... Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 70 ] Neither of these two branches of the formulation is satisfied here, and accordingly, the trial judge committed an error of law in taking judicial notice of how or whether telecommunication companies store text messages.

However, I accept the Crown’s argument that the error was not material to the decision and no consequences flow from it. CONCLUSION [ 71 ] Time and again we have said it is not the role of the Court of Appeal to retry the case or to substitute its own discretion based on the weighing of the evidence or reassessing credibility. This case turned substantially on the trial judge's assessment on credibility. The trial judge assessed the credibility of the key witnesses, and those assessments are well supported by the evidence. He saw and heard the appellant, S.R. and the other witnesses.

He was uniquely positioned to assess both the reliability and credibility of the evidence. He disbelieved the appellant and believed S.R. The trial judge properly instructed himself on the principle set out in R. v. W.(D.) and was satisfied beyond a reasonable doubt that the Crown had proven each charge. There was no palpable and overriding error, and there was no misapprehension of the evidence. The trial judge's inferences, and his vital finding that the appellant was not a credible witness, are supportable on the evidence and deference is owed to the trial judge with respect to those findings.

The verdicts are not unreasonable. [ 72 ] I would dismiss the appeal. Appeal dismissed.