R. v. P.H., 2022 NLCA 37

P.H. (appellant) v. Her Majesty the Queen (respondent) (19/77) Indexed As: R. v. P.H. 2022 NLCA 37 7 C.A.N.L.R. 692 Court of Appeal of Newfoundland and Labrador Hoegg, O’Brien and Butler JJ.A. June 15, 2022 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way.

Summary: P.H. appealed his three convictions for sexual assault under

section 271 of the Criminal Code. He served four years in prison for eachcount (concurrent). The convictions followed from the judge’s finding that P.H. had been in a sexual relationship with the complainantover a period of approximately a year and a half when the complainant was under 16 years of age and he was over 40 years old. Thesexual relationship ended when the complainant’s parents became aware of it as a result of the discovery of nude photos of thecomplainant on P.H.’s phone. Held: Appeal dismissed.

O’Brien J.A. (Hoegg and Butler JJ.A. concurring): Absent a palpable and overriding error, appellate deference is afforded to credibilityfindings by the trial judge (paragraphs 14-19). The judge made no error in considering the evidence of P.H. and the complainant or in making credibility findings that were anchored inthe evidence. Nor did the judge err in applying the analytical framework set out by the Supreme Court of Canada in R. v. W.(D.). Theassessments of credibility did not result in an unreasonable verdict (paragraphs 20-51).

On appeal, for the first time, P.H. raised an issue regarding an inadequate investigation by the police. He alleged that better investigationwould have established that he did not send electronic messages that were tendered in evidence. In the normal course, leave of the Courtis required to raise a new issue on appeal. Leave was not sought in this case (paragraphs 52-59). In any event, in the circumstances, it was unnecessary to decide the question of leave.

Inadequacy of an investigation must be relevantinsofar as it may have affected the reliability of the evidence, thereby potentially impacting whether the elements of the offence havebeen established. The judge rejected P.H.’s testimony and his explanation, and accepted that of the complainant (paragraphs 60-70). Noerror was made in the judge’s credibility analysis and findings or in his consideration of the photos and electronic messages (paragraphs71-72). Cases cited: Kienapple v. The Queen, (SCC), [1975] 1 SCR 729 R. v. W.(D.), (SCC), [1991] 1 SCR 742 R. v. Hiscock, 2016 NLCA 74, 1 C.A.N.L.R. 354

R. v. Barnes, 2021 NLCA 15 R. v. K.P., 2019 NLCA 37, 4 C.A.N.L.R. 493 R. v. S.O., 2019 NLCA 42, 4 C.A.N.L.R. 604 R. v. Dove, 2022 NLCA 6 R. v. G.F., 2021 SCC 20 R. v. Gerrard, 2022 SCC 13 R. v. Burke, (SCC), [1996] 1 SCR 474 R. v. W. (R.), (SCC), [1992] 2 SCR 122 Schwartz v. Canada, (SCC), [1996] 1 SCR 254 R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621 Benhaim v. St Germain, 2016 SCC 48, [2016] 2 SCR 352 R. v. Brunelle, 2022 SCC 5 F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41 R. v. Darwish, 2010 ONCA 124 R. v. Spackman, 2012 ONCA 905 Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879 Guindon v.

Canada, 2015 SCC 41, [2015] 3 SCR 3 R. v. Reid, 2021 NLCA 13 R. v. Montague-Mitchell, 2018 SKCA 78 R. v. Hirsch, 2017 SKCA 14 R. v. Ball, 2019 BCCA 32 Statutes considered: Criminal Code, sections 271, 151 Counsel: Appearing on his own behalf, the appellant; Shawn Patten, for the respondent. The appeal was heard on November 18, 2021 before Hoegg, O’Brien and Butler JJ.A. The following judgment was filed on June 15, 2022 by O’Brien J.A. for the Court. ______________________________________________________________ O’Brien J.A.: Introduction [1] Mr.

H is appealing his convictions for sexual assault.After a trial in the Supreme Court of Newfoundland and Labrador, he wasconvicted on three counts of sexual assault (section 271 of the Criminal Code, R.S.C. 1985, c. C-46). The judge provided reasons for the

convictions in an oral decision that was included in the transcript filed on appeal. Three additional counts of sexual interference (section151 of the Criminal Code) were stayed in accordance with the Supreme Court of Canada’s direction in Kienapple v. The Queen, (SCC), [1975] 1 SCR 729. [2] Mr. H received a sentence of four years in prison for each of the sexual assault convictions, with the sentences ordered to beserved concurrently. There is no appeal regarding sentence and Mr. H has served the period of imprisonment imposed. [3] The convictions for sexual assault followed from the judge’s finding that Mr.

H had been in a sexual relationship with thecomplainant when the complainant was under 16 years of age, and Mr. H was over 40 years old. [4] The complainant testified at trial that the sexual relationship began when she was 14 years old and continued for approximately ayear and a half. The relationship ended when the complainant’s parents became aware of it. Mr. H’s former spouse discovered nudephotos of the complainant, which the complainant had sent electronically to Mr. H, along with an exchange of electronic messagesrelating to sexual relations between the two. Mr.

H’s former spouse told the complainant’s mother what she had discovered, and thepolice were notified. [5] The judge, at page 3, considered

section 271 of the Criminal Code, with respect to the offence of sexual assault: Under s. 271 of the Criminal Code, the offence of sexual assault is proven when an assault, being the intentional application of force,directly or indirectly to another person, without their consent is committed in circumstances of a sexual nature. [6] The judge noted, at page 3, that there could be no consent to sexual activity in this circumstance because of the complainant’sage: “Under the law, the complainant, under 16 at all relevant times, could not consent to sexual activity with an adult.” Therefore, thetrial focused on whether sexual activity had occurred between the complainant and Mr.

H during the relevant time period. Mr. H testifiedat trial and he denied any sexual activity with the complainant. [7] After considering all of the evidence including the testimony of Mr. H, the complainant, and other witnesses, the judge, at page23, convicted Mr. H, concluding: “Based upon the evidence referred to above and the concomitant W.(D.) analysis, I am satisfied,beyond a reasonable doubt, that Mr. [H] committed a sexual assault on the complainant as set out in … the indictment”. Issues on Appeal [8] Mr. H advances two grounds of appeal. [9] The first deals with the judge’s credibility findings.

He alleges that the judge erred in assessing credibility in the context of theframework set out by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 SCR 742. Specifically, he arguesthat the judge should not have accepted the complainant’s evidence or found her to be a credible witness because her testimony containedinconsistences. Mr. H also submits that the judge erred in assessing his credibility, and in not accepting his evidence. He contends thatthe judge’s alleged errors in assessing credibility resulted in an unreasonable verdict. [10] Second, Mr.

H submits that there was an inadequate police investigation regarding the nude photos and electronic messagesentered into evidence at the trial. He alleges that the judge erred in failing to find that there had been an inadequate police investigation,and in failing to conclude that this evidence was therefore unreliable. [11] Accordingly, the issues to be considered on appeal are as follows: 1. Did the judge err in the credibility assessments of Mr. H and the complainant, resulting in an unreasonable verdict? 2.

Did the judge err in failing to find that there was an inadequate police investigation, resulting in the admission of unreliable evidence? Issue 1: Assessment of credibility [12] Mr. H argues that the judge should not have believed the complainant because, as he stated in the notice of appeal and argued onappeal, “[t]he complainant’s story has been inconsistent from the start”, and “[n]o encounter she claims happened had any real detail”(Appeal Book, filed August 3, 2021, Tab 1).

Accordingly, he submits that his evidence should have been accepted and preferred over thecomplainant’s evidence where the two conflicted. Appellate review of credibility findings [13] This Court has frequently observed that findings of credibility are findings of fact within the purview or province of the trialjudge, which are not to be lightly displaced on appeal. See, for example, R. v. Hiscock, 2016 NLCA 74, 1 C.A.N.L.R. 354, at para. 17; R.v. Barnes, 2021 NLCA 15, at paras. 44, 77; R. v. K.P., 2019 NLCA 37, 4 C.A.N.L.R. 493, at para. 26; R. v. S.O., 2019 NLCA 42, 4C.A.N.L.R. 604, at para. 16; and R. v.

Dove, 2022 NLCA 6 at paras. 18-19. Similarly, the Supreme Court of Canada has also stated thisproposition on numerous occasions (see, for example, R. v. G.F., 2021 SCC 20, at para. 99; and R. v. Gerrard, 2022 SCC 13, at para. 3). [14] Appellate deference afforded to credibility findings recognizes what has been variously described as the trial judge’s“advantageous”, “special”, “unique” or “privileged” position flowing from the judge’s ability to directly observe witnesses as they testify(see R. v. Burke, (SCC), [1996] 1 SCR 474, at para. 5; R. v.

W. (R.), (SCC), [1992] 2 SCR 122, at 131;Dove, at para. 18; and Schwartz v. Canada, (SCC), [1996] 1 SCR 254, at para. 32). [15] This is not to say that credibility findings are unassailable or beyond appellate review. As the Supreme Court of Canada hasobserved, an appellate court cannot “abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonablyavailable” (R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621, at para. 21; see also Burke, at para. 5). [16] However, unless there has been a palpable and overriding error (see Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 SCR 352, at

paras. 36-39 ) in the assessment of credibility, credibility findings should not be disturbed, and the judge’s “perceptions should be respected” ( Gagnon , at para. 20 ). See also R. v. Brunelle , 2022 SCC 5 , at paras. 8-9 ; and Gerrard , at para. 3 . [ 17 ] In this case, Mr. H is alleging that the judge erred in her credibility findings. If a palpable and overriding error is established in this regard, appellate intervention is warranted.

If not, the judge’s credibility findings should stand. [ 18 ] To determine whether the judge made a palpable and overriding error in this respect, it is useful to consider the judge’s review of the evidence of the complainant and Mr. H, and the credibility findings that followed from this review. The judge’s review of the complainant’s evidence [ 19 ] The judge considered the complainant’s evidence about the nature of the relationship with Mr. H. She noted, at page 3, that the complainant did not wish to speak about it at first, but later admitted the relationship was sexual: Cst.

Bourque, the investigating officer, said that the complainant’s parents told her that she refused to speak to the police but she subsequently presented at the detachment for an interview. The complainant informed the police that she had been in a sexual relationship with Mr. [H] since she was 14 years old. … At page 5, the judge, reviewed the complainant’s evidence regarding how the sexual relationship began: The complainant referred to Mr. [H] as a friend of her father.

The evidence disclosed that she was infatuated with him and had been since she was much younger. … The complainant testified that she was pretty sure that she sent him nude photos when she was 14 through a text message, noting that he had not asked her to do so. [ 20 ] The judge considered the complainant’s evidence, beginning with her description of the circumstances relating to the first occasion of sexual intercourse with Mr. H, when the complainant was 14 years old. The complainant testified that this had occurred on a day when Mr.

H had been helping her father in shingling his roof: The complainant recalled that the first time they had sex was in the spring when she was 14 years old, which would make it 2014. Mr. [H] and others were at her home helping her father shingle the roof. She said that he took her to feed the animals at his house in [a neighbouring town] and they had sexual intercourse and oral sex in the bedroom.

She described the layout of his house and said that no one else lived there with him. ( Oral Decision , at pages 5-6) [ 21 ] The judge described the complainant’s evidence regarding the locations and circumstances of further sexual contact with Mr. H, which the complainant testified to have occurred on 20 to 30 occasions over approximately a one and a half year period. The complainant described these incidents as having occurred in houses where Mr.

H lived, and in vehicles he operated during the period in question: She said that they had sex in the house … several times, probably 15 and this went on for one and a half years. He would pick her up at a location on the road near her house. She said that he wore a condom except maybe once and that he did not have pubic hair. ( Oral Decision , at page 6) She also recalled that they had sex … at the farm he used to own with his former spouse where they had animals and there was an old building.

They had sex in his RAV4 vehicle, which was parked on the land, on the passenger seat where they both took off their pants. She was 15 years old, does not recall what time of year it was … . She said the purpose in going to the farm was to have sex and that it was her idea. ( Oral Decision , at page 6) … She also recalled having sex in the back seat of a GMC van in the driveway of Mr. [H’s] property. She testified that the last time that they had sex was in his house … in October 2015 when she was 16.

She estimated, in all, they had sex 20 to 30 times. ( Oral Decision , at page 7) The complainant knew that Mr. [H] had several girlfriends during the time period and she acknowledged that she and Mr. [H] only had sex but she had told him that she wanted a relationship. ( Oral Decision , at page 7) [ 22 ] The complainant also testified that she accompanied Mr. H, who was employed as a commercial truck driver, in his truck when he made a delivery to the community of Twillingate.

The judge, at pages 6-7, described the complainant’s evidence regarding the sexual activity that occurred on that trip: Mr. [H] was working as a truck driver and she described a time when she accompanied him on a road trip to Twillingate. It was her idea to go with him and she remembered that her parents were initially against it. He drove from [the community where he was living] and she met him by the fire department [in the nearby community where she lived]. They had sex on the bunk in the truck on the wharf in Twillingate, she testified.

She performed oral sex on him and they also had sexual intercourse. [ 23 ] The police investigation in this case was triggered by the discovery of nude photos of the complainant sent from the complainant’s Facebook Messenger account to Mr. H’s account, along with an exchange of electronic messages in which sexual activity between the complainant and Mr. H was discussed. The judge noted, at page 2, that the “text messages spoke of a sexual relationship. The complainant asked Mr. [H] to get together for sex the next night”. [ 24 ] The evidence was that Mr. H had lost his cellphone and bought a new one.

When the old phone was found, he gave it to his daughter, but the messenger account had not been deactivated, and messages could still be received on that phone. Mr. H’s former

spouse testified that when she was charging the phone, she noticed the nude photos and electronic messages. She testified that she took pictures of these photos and messages and told the complainant’s mother what she had found. These were subsequently provided to police and entered into evidence at trial. The judge noted, at page 2, that Mr.

H’s former spouse “testified that it was clear to her that the pictures and accompanying messages came from the complainant”. [ 25 ] The judge described the complainant’s evidence regarding the discovery of the nude photos and electronic messages, and noted that the complainant admitted to a sexual relationship with Mr. H after she had been advised that the photos and messages had been discovered: The complainant recalled that [Mr.

H’s former spouse] found the messages on her daughter’s phone and showed them to [the complainant’s] mother. [The complainant] recognized the nude pictures that she sent to him and texts, which included her profile picture, all sent to Mr. [H]. She guessed that the reason that she sent the pictures was that she was trying to get him to have sex with her, because she did not think they were involved at that time.

She testified that she had developed the practice of deleting the text messages between them when received on her phone and that no one else had access to her Facebook Messenger account. ( Oral Decision , at pages 7-8) The complainant said that she initially denied any sexual contact with Mr. [H] until her mother showed her the messages that she had been given by Mr. [H’s former spouse]. She then told her the truth, she said, that she and Mr. [H] had sex. ( Oral Decision , at page 8) The judge’s review of Mr. H’s evidence [ 26 ] The judge, at page 8, considered Mr.

H’s testimony, and noted that he denied any sexual involvement with the complainant and testified that the complainant was lying: Mr. [H] disputed the complainant’s evidence and it was his position that she was not truthful when she testified that he had sex with her. He said that he had known the complainant since she was a child because her parents were friends and her younger sister spent a lot of time with his daughter. When Mr. [H] and his wife separated he was invited to her home for Sunday dinner.

His position throughout the trial was that the complainant was lying when she said they had sex. [ 27 ] At pages 8-9, the judge reviewed excerpts from Mr. H’s testimony wherein he addressed and refuted specifics of the complainant’s testimony, including how the complainant would have had knowledge of his personal grooming details: Mr. [H] said that she would have known that he did not have pubic hair because it came up in a conversation one Sunday when he was at her parents’ home. … The complainant denied hearing this conversation when asked and her mother was not asked during her testimony. [ 28 ] Mr.

H specifically denied the complainant’s account regarding the first sexual encounter between them, which she alleged occurred on the day when Mr. H had been helping her father with his roof. He testified that he and the complainant left the house together that day, but did so only to buy beer and soft drinks for those repairing the roof. He denied that any sexual activity occurred: Mr. [H] acknowledged that he spent time alone with the complainant. He said that he looked upon her as a daughter.

In response to the allegation that they first had sex on the day that he helped with the shingling of the roof, he testified the two of them left her parents’ home that afternoon, but it was only to go to the local convenience store to pick up beer and soft drinks for her father and the other men helping out. ( Oral Decision , at page 9) He estimated that the trip to and from the store would have taken just 15 minutes, after which they returned to her house. Further, he said that they shingled the roof around two or three in the afternoon and that this was not the normal feeding time for the animals.

So that her evidence that they went to feed the animals was not true. ( Oral Decision , at page 9) [ 29 ] Mr. H also specifically denied any sexual activity when the complainant accompanied him on road trips related to his work as a truck driver, including the trip to Twillingate. The judge, at pages 9-10, reviewed his evidence and denial in this regard: Mr. [H] estimated that the two of them would have gone on trips to the store together three or four times subsequent to that and that they also went on road trips together when he was employed as a commercial truck driver.

He denied any inappropriate sexual activity on the trucking excursions. He said that he took her because she was really interested in trucks and wanted to get a truck licence. … Mr. [H] said that the complainant had pestered her mother to go on the Twillingate trip and her mother, ultimately agreed. Mr. [H] testified that this trip took much longer than expected because the boat, whose cargo he was to transport, had been stuck in the ice and they were delayed for several hours on the wharf. He described spending the delay time working on his log book while sitting in the driver’s seat.

The complainant was in the back, in the bunk of the truck on her phone. He denied going back to the bunk and testified that they left Twillingate at about 9:00 p.m. and got back to her house at 2:30 a.m. [ 30 ] The judge, at page 11, also noted that the complainant’s mother testified that she had previously spoken to Mr. H, as she was concerned about the nature of his relationship with her daughter, and that Mr. H had assured her the relationship was not sexual: Mr. [H] said that he stopped spending time with the complainant when his father told him that there was gossip in the community about the relationship.

The complainant’s mother had also testified that she had spoken to Mr. [H] the previous summer because she had heard rumours involving her daughter but said that he laughed it off, assuring her that he would never do that. [ 31 ] With respect to the nude photos of the complainant and the electronic messages sent from the complainant to Mr. H via Facebook Messenger, the judge noted that Mr. H denied responding to these messages.

The judge stated, at page 11, that he “denied any involvement in the text messages sent in December 2015, and said that they had probably been sent by a former jealous girlfriend, who he named”. Mr. H testified that he did not send these messages.

[ 32 ] The judge also considered a telephone conversation between the complainant and Mr. H, which took place subsequent to his arrest and before the trial when there was a court order in place that Mr. H not communicate with the complainant. The judge stated that complainant called Mr. H “at 4:00 a.m. in an inebriated condition”, and that the conversation was recorded and Mr.

H “spoke to her, despite the no-contact prohibition”. ( Oral Decision , at page 12) [ 33 ] The judge described the call, wherein the complainant blamed her parents for going to the police and discussed how she might “fix” the situation: … The complainant said that she was calling to apologize and blamed her mother and father for going to the police and said that it was out of her hands. Her voice was slurred and made reference to wanting to have sex with him. Mr. [H] said that because of her actions he would face time in jail.

She said that she had tried calling him for one and a half years to not avail, but that she would fix it. … ( Oral Decision , at page 12) … Mr. [H] told her that she spilled her guts in the Facebook message … on his daughter’s phone. The complainant asked Mr. [H] what she should do and he replied that she should do what she felt was best. … ( Oral Decision , at pages 12-13) [ 34 ] The judge, at page 13, stated that the complainant subsequently sent Mr.

H text messages “stating that she would tell the police that it was not true and that he holds a place in her heart and that she would prove this to him.” The judge noted that the complainant advised Mr. H: … I will tell them I was lying the whole time. I will tell them all lies to believe me and for you to not go anywhere. I just don’t want you to go to jail… . ( Oral Decision , at page 13) [ 35 ] Ultimately, the judge found that the telephone conversation did not support a conclusion that the complainant and Mr. H had not been involved in a sexual relationship.

The judge stated: I am not satisfied that anything in the recording of the complainant, while she was intoxicated and contrary to the no-contact undertaking, placed on Mr. [H], supports his position that he did not commit these offences. The complainant had no memory of the details of the call. Mr. [H] chose, despite the prohibition and speaking with her, to frequently interject in the conversation telling her she had spilled her guts. ( Oral Decision , at page 22) The judge’s credibility findings regarding Mr. H [ 36 ] Having considered all the evidence, the judge rejected Mr.

H’s testimony, finding that it did “not have an air of reality”, “lacks plausibility”, and was “conjecture unsupported by common sense or by any other evidence” ( Oral Decision , at page 18). The judge provided reasons for her credibility findings. For example, at pages 17-19, she stated: I do not accept Mr. [H’s] evidence that he did not have sex with the complainant. Nor do I find that his evidence raises reasonable doubt. I reject his reasons, his evidence for these reasons.

First, his assertion that the complainant, a 14 year old girl, would have known that he did not have pubic hair due to a family discussion about it following Sunday dinner at her parent’s house does not have an air of reality and is not supported by any other evidence. His evidence that no sex occurred at [the community where he was living] the day of roof shingling, because the complainant testified that the sex occurred in the afternoon and that is not the feeding time for animals, is rejected for the same reason.

Likewise, his evidence that he spent the hours long delay while in Twillingate, sitting in the driver’s seat working on his log book, while the complainant spent time in the bunk, lacks plausibility. He testified that the complainant had been infatuated with him as far back as 11 years old, even wanting to sleep in the same bed with him, yet he took her on long road trips.

Further, I find Mr. [H’s] denial of sending the text messages about sex with the complainant in December 2015, from his Facebook Messenger account, and testifying that it was likely his former jealous girlfriend who may have been trying to establish when he was cheating on her, to be conjecture unsupported by common sense or by any other evidence. Mr. [H] dated several women in this timeframe including a period of reconciliation with his spouse.

There were no clear timelines of when he dated the women and it was far from clear why this particular woman would choose to send a message to a teenage girl in December of 2015 on the grounds that while no longer in a relationship with Mr. [H], she wanted to establish when he was cheating on her. There was no evidence that she had access to the account at that time or knew the complainant’s former boyfriend whose name came up in the conversation.

The judge’s credibility findings regarding the complainant [ 37 ] In assessing the complainant’s credibility, the judge first observed that there were inconsistencies in the complainant’s evidence. These included, for example: “whether sex occurred in two homes and two vehicles or in two homes and four vehicles”; whether sexual activity took place in “June” or in “the spring”; the number of trips and sexual encounters in Mr. H’s truck; and whether the trip to Twillingate was overnight or not (as noted above, Mr.

H testified that they arrived home at 2:30 a.m., and it was not an overnight trip) ( Oral Decision , at pages 19-20). [ 38 ] At pages 19-20, the judge acknowledged these inconsistencies: I do agree with counsel for the defence that there were inconsistencies in the complainant’s testimony. In particular, the defence points to discrepancies in the evidence at trial and at [the] preliminary inquiry, such as whether sex occurred in two homes and two vehicles or in two homes and four vehicles. She had said they had sex in June and that she was still in school and later had said the spring.

The defence points to inconsistencies and how long the breaks were between seeing him from preliminary inquiry testimony and whether she had sex with him and he had other girlfriends. She was not sure if the trip to Twillingate was overnight or not, she said she only went on one truck trip and at the preliminary inquiry more times. Her mother testified that she could not remember when the trips were and thought there were two. At the preliminary inquiry she said that there had been two incidents in the truck and at the trial only one and she was inconsistent in relation to the use of condoms.

The Crown also acknowledges inconsistencies in the complainant’s evidence and that her demeanour appeared indifferent in giving her evidence.

The Crown explained that the 14 year old believed she was in a relationship when she was with Mr. [H], so it would not be reasonable to expect her to remember details as vividly as if she felt she had been sexually assaulted. [ 39 ] The judge, at pages 16-17, referenced a decision of this Court regarding the potential impact of inconsistencies on credibility, noting that inconsistencies may be minor and have little impact, or be major and critical to a credibility assessment: The Newfoundland Court of Appeal in R. v.

H.(C.) discusses assessment of credibility instructing that it is not appropriate to rely solely on demeanour, instead, the Court should examine the evidence consistencies with the probability that exist[s] within the factual matrix. … In short, the real test of the truth of the story of a witness in such a case, must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

Accordingly, minor inconsistencies going to detail will not generally be problematic to the issue of credibility, particularly, in relation to a young person. A relevant consideration is whether the inconsistency goes to a material matter about which an honest person, an honest witness is unlikely to be mistaken. … [ 40 ] In this circumstance, the judge concluded that the inconsistencies were not significant and did not undermine the complainant’s credibility or render unreliable her core evidence regarding the sexual nature of the relationship with Mr.

H: Upon review of the evidence, as a whole, and guided by the principles set out in the case law, I do not consider any of these inconsistencies to be significant and I found the complainant’s evidence to be reliable. ( Oral Decision , at page 20) … Overall, I find the complainant’s evidence reliable. This evidence which is summarized above, describes the on-going sexual relationship with Mr. [H], within the timeframe and the locations set out in the six counts in the indictment.

I found her evidence not to be exaggerated and she was forthright to state on several occasions that she initiated getting together to have sex. ( Oral Decision , at page 22) Assessment of credibility as part of the R. v. W.(D.) analysis [ 41 ] The judge, at page 17, considered credibility in applying the analytical framework set out by the Supreme Court of Canada in R. v. W.(D.) : In addition to assessing whether there are significant contradictions in the witness’s testimony, the Court must review all the evidence and determine whether there is important evidence which contradicts the complainant’s allegations.

The issue of whether Mr. [H] sexually touched the complainant when she was under 16 years of age, turns on my assessment of the credibility of her evidence and contradictory evidence of Mr. [H]. That’s the question I must answer, is does Mr. [H’s] evidence, considered along with all the other evidence, raise a reasonable doubt about whether he sexually touched the complainant when she was under the age of 16. That is, does the evidence, as a whole, establish, beyond a reasonable doubt, that Mr. [H] had sex with the complainant before she turned 16. [ 42 ] In respect of R. v.

W.(D.) , the judge outlined, at pages 14-15, the framework and discussed how it applied in the present case: … The law requires that I assess the credibility of both Mr. [H] and the complainant in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.) This case instructs that I must acquit Mr. [H] if I believe his evidence. I must also acquit Mr. [H] if I don’t believe his evidence but his testimony leaves me with a reasonable doubt.

Even if I am not left in doubt by the defence evidence, I must ask whether, on the basis of the evidence that I do accept, I am convinced, beyond a reasonable doubt of his guilt. I must not convict Mr. [H] because I reject his evidence, as has been stated earlier. I can only convict him if I did not believe his evidence and further, upon consideration of the evidence as a whole, I accept that the Crown has established, beyond a reasonable doubt, the truth of the conflicting credible evidence. [ 43 ] In this context, the judge considered the testimony of both Mr. H and the complainant.

As discussed above, she found the complainant’s evidence to be credible and reliable regarding the sexual nature of the relationship between the two. The judge, at page 20, rejected Mr. H’s evidence and his denial of a sexual relationship. She also noted that the R. v. W.(D.) analysis did not end there: It’s not sufficient, however, that I do not believe Mr. [H], I must also determine whether his evidence leaves me with reasonable doubt. It does not.

However, even if I am not in doubt by his evidence, I must assess whether the Crown’s total evidence establishes the charges on the standard of proof beyond a reasonable doubt. [ 44 ] The judge, at pages 22-23, went on to conclude that the offence of sexual assault had been proved beyond a reasonable doubt: The Supreme Court of Canada in R. v.

Litchfield explained the test as to whether the accused’s conduct constituted a sexual assault is objective, all the circumstances respecting the conduct are relevant to the issue as to whether the contact was sexual in nature, and in violation of the complainant’s sexual integrity. Based upon the evidence referred to above and the concomitant W.(D.) analysis, I am satisfied, beyond a reasonable doubt, that Mr. [H] committed a sexual assault on the complainant as set out in Counts 2, 4 and 6 of the indictment.

The offences of sexual interference and sexual assault arise in the same timeframe and the same factual background and are supported by the same evidence. Did the judge err in assessing credibility? [ 45 ] Having considered the judge’s reasons, and having reviewed the transcript of the evidence and the trial record, I would conclude that the judge made no error in considering the evidence of Mr. H and the complainant, or in making credibility findings that were anchored in the evidence. Further, no error is apparent in the judge’s articulation or application of the R. v. W.(D.) framework, including

the assessment of credibility in this context. [ 46 ] As stated recently by the Supreme Court of Canada in Brunelle , at paras. 8-9 , given the “trial judge’s privileged position in assessing the evidence”, it is not appropriate for an appellate court, “without clearly identifying a palpable and overriding error in [the judge’s] analysis”, to “simply substitute its opinion for that of the trial judge with respect to the assessment of the credibility of witnesses”.

The Supreme Court reiterated that, absent an error, deference is owed to the judge’s credibility findings in such circumstances. [ 47 ] Further, as the Supreme Court has observed recently in Gerrard , at para. 2 , where a trial judge “did not evaluate the complainant’s evidence in isolation, but properly tested it against the evidence of other witnesses – including the accused – and offered cogent reasons for finding that the complainant’s evidence was credible without improperly marginalizing that of [the accused] or any of the other witnesses…”, there is no reason for appellate interference. [ 48 ] In the present case, the judge observed the witnesses and heard their evidence.

The judge was clearly “alive to” inconsistencies respecting the complainant’s evidence, and concluded that the witness was nonetheless credible ( see F.H. v. McDougall , 2008 SCC 53 , [2008] 3 SCR 41 , at paras. 70-71 ). In this case, the judge addressed the inconsistencies in the complainant’s testimony and concluded that these were not material. Ultimately, the judge accepted the complainant’s evidence, rejected Mr.

H’s evidence and, having considered all of the evidence, determined that the criminal standard of proof beyond a reasonable doubt had been met. [ 49 ] Consistent with the case authorities, as no error has been demonstrated, there is no basis for appellate intervention and the judge’s findings should not be disturbed on appeal ( Gagnon , at para. 20 ; Gerrard , at para. 2 ; and Brunelle , at paras. 8-9 ). [ 50 ] The conclusion follows that, as there was no error in the judge’s credibility assessments of Mr. H and the complainant, these assessments of credibility did not result in an unreasonable verdict.

Issue 2: Inadequate police investigation [ 51 ] Contentions of inadequate police investigations have been considered by the Ontario Court of Appeal in various circumstances (see , for example, R. v. Darwish , 2010 ONCA 124 ; R. v. Spackman , 2012 ONCA 905 ; and more recently Ontario (Labour) v. Miller Group Inc. , 2021 ONCA 879 ).

As noted by Trotter J.A. in Ontario (Labour) , at para. 34 , an “[a]ccused person does not have a “constitutional right to direct the conduct of a police investigation of which she or he is the target”: Spackman , at para. 108 ”, and “an [a]ccused person has no right to insist that further or other investigative steps be taken”. [ 52 ] Mr. H has submitted on appeal that the police investigation in this matter was inadequate regarding the nude photos of the complainant that she sent to Mr. H, and the exchange of electronic messages discussing sexual activity between the two. As noted earlier, Mr.

H’s former spouse discovered these photos and messages and took pictures of them, and they were provided to the police and ultimately entered into evidence at trial. There was no objection to their admissibility. [ 53 ] Mr. H maintains on appeal that his cellphone and the complainant’s cellphone should have been seized and analyzed as part of the police investigation. His contention is that some further investigation of the cellphones would have established that he did not send the messages in question to the complainant. [ 54 ] At trial, Mr.

H stated that he did not send these electronic messages to the complainant. He testified that a former girlfriend had access to his Facebook Messenger account and that she likely sent the messages, pretending to be him. [ 55 ] As discussed earlier, the judge, at pages 18-19, did not accept Mr.

H’s evidence on this point, finding that it was “conjecture unsupported by common sense or by any other evidence”: Further, I find Mr. [H’s] denial of sending the text messages about sex with the complainant in December 2015, from his Facebook Messenger account, and testifying that it was likely his former jealous girlfriend who may have been trying to establish when he was cheating on her, to be conjecture unsupported by common sense or by any other evidence. Mr. [H] dated several women in this timeframe including a period of reconciliation with his spouse.

There were no clear timelines of when he dated the women and it was far from clear why this particular woman would choose to send a message to a teenage girl in December of 2015 on the grounds that while no longer in a relationship with Mr. [H], she wanted to establish when he was cheating on her. There was no evidence that she had access to the account at that time or knew the complainant’s former boyfriend whose name came up in the conversation. [ 56 ] While Mr. H has raised the contention of an inadequate police investigation on appeal, there was no evidence or finding regarding this contention at trial.

No allegation of an inadequate investigation was made in questioning the investigating officer at trial. The officer testified that she had received the nude photos and electronic messages as part of her investigation. She was not questioned as to why cellphones had not been seized and it was never suggested that the investigation was inadequate in this respect. Nor was the allegation of an inadequate investigation raised by Mr. H in his testimony, or by any other witness.

When the issue was mentioned for the first time in final submissions at trial the Crown objected, noting that there was no evidence on this point. Because this was not in issue at trial, the judge made no reference to it. [ 57 ] Further, there was no application to this Court to raise this as a new issue. Leave was not granted by this Court to permit the issue to be considered at first instance on appeal, as is the usual prerequisite (see for example, Guindon v. Canada , 2015 SCC 41 , [2015] 3 SCR 3 , at paras. 20-21 ; and R. v. Reid , 2021 NLCA 13 , at paras. 9 -13 ).

Therefore, in the normal course, this would not be considered for the first time at the appeal level. [ 58 ] However, it is unnecessary to decide the matter on this basis. Even if it was properly before this Court on appeal, an allegation of inadequate police investigation might be relevant insofar as it is shown to have affected the reliability of evidence, thereby potentially impacting whether the elements of an offence have been established. Such an allegation, however, does not constitute a stand-alone ground on which an appeal may be taken. As noted in R. v. Montague-Mitchell , 2018 SKCA 78 :

[58] There are obviously situations where inadequacies in police investigations cause prosecutions to fail. However, this arises from the Crown’s inability to establish the elements of the offence beyond a reasonable doubt, not from the inadequacy of the investigation per se . … But, again, this does not mean a finding of not guilty can flow directly from the shortcomings in the investigation. It must necessarily be a function of the evidence presented to the trial judge. [ 59 ] In the present case, Mr.

H’s concern about the electronic messages relates to his contention that he did not author the messages attributed to him. It is on this point that he alleges further investigation was required. [ 60 ] However, it was not contested that the complainant sent the nude photos and messages to Mr. H’s account, understanding that she was sending them to Mr. H. This was clear from her evidence. It was also clear that the complainant understood that she was having a discussion and exchange of messages with Mr.

H by Facebook Messenger, and that the messages were sexual in nature and related to a sexual relationship between them. [ 61 ] The judge, at pages 7-8, summarized the complainant’s evidence on this point: She recognized the nude pictures that she sent to him and texts, which included her profile picture, all sent to Mr. [H]. She guessed that the reason that she sent the pictures was that she was trying to get him to have sex with her, because she did not think they were involved at that time.

She testified that she had developed the practice of deleting the text messages between them when received on her phone and that no one else had access to her Facebook Messenger account. [ 62 ] The judge noted, at page 2, that the “text messages spoke of a sexual relationship”, and added: “The complainant wrote about her feelings for Mr. [H] telling him that she would love to be with him, that she would never get over him because he made her feel special but that he probably worked his charm on every girl he had sex with”. [ 63 ] There was no issue raised at trial or on appeal regarding authentication of the photos or messages sent by the complainant to Mr.

H. The complainant testified that these were clearly sent from her account to Mr. H’s account, and the judge accepted the complainant’s testimony in this regard (see , for example, R. v. Hirsch , 2017 SKCA 14 , at para. 18 ; R. v. Ball , 2019 BCCA 32 , at para. 70 ). It is not evident how any further investigation was required in this respect, given that the complainant testified that she sent the photos and messages to Mr. H, and that she understood she was communicating with Mr. H. [ 64 ] Regarding Mr.

H’s contention that further police investigation might have shown that his former girlfriend had sent the reply messages to the complainant, from his account, two points arise. [ 65 ] First, in assessing Mr. H’s credibility it was within the purview of the judge to reject his evidence on this point. The judge did in fact, reject Mr. H’s evidence, at pages 18-19, concluding that his contention was “conjecture unsupported by common sense or by any other evidence”, and that there “was no evidence that Mr.

H’s former girlfriend] had access to the account at that time or knew the complainant’s former boyfriend whose name came up in the conversation”. Other than Mr. H’s allegations, there was no further evidence to suggest that Mr. H’s former girlfriend had been involved in sending messages, and his former girlfriend did not testify at trial. [ 66 ] While Mr.

H questions the genuineness of the messages and suggests a former girlfriend may have sent them, as noted in Ball , at para. 70 , consideration as to whether an authenticated document is genuine “is a question of weight for the fact-finder which often turns on determinations of credibility”. As noted, the judge assessed Mr. H’s credibility and did not accept his evidence on this point. In the absence of an error in this respect, there is no basis on which these findings should be displaced. [ 67 ] Second, while the judge concluded that messages were sent by Mr.

H, she also observed that even if they were not sent by him, this would not be consequential and would not impact the complainant’s evidence, which did not require corroboration: For the Crown’s part, it is submitted that this case is not one of competing testimony of Mr. [H] and the complainant because the sexual touching and the sexual assault are corroborated in the Facebook messages which Mr. [H] sent in response to the nude pictures.

In any event, the Crown states that it does not matter if the reply texts were not sent by Mr. [H] because the complainant responds to them and further, the complainant’s evidence does not require corroboration referring to R. v. W.R. I agree. ( Oral Decision , at page 21) [ 68 ] Finally, there was no argument, at trial or on appeal, that this evidence was otherwise inadmissible on some other basis. [ 69 ] In the result, based on the evidence at trial, the judge did not err in considering the photos and the electronic messages respecting the sexual relationship between the complainant and Mr. H.

The judge also did not err in failing to find that there was an inadequate police investigation that rendered this evidence unreliable.

Summary and Disposition [ 70 ] For the reasons provided above, I would conclude that there was no error, and thus no basis for appellate intervention, in respect of the judge’s credibility analysis and findings, and that the assessments of credibility did not result in an unreasonable verdict. Further, there was no error in respect of the judge considering the photos and electronic messages relating to the sexual relationship between the complainant and Mr. H. [ 71 ] In the result, I would dismiss the appeal. Appeal dismissed.