R. v. Waterman, 2020 NLCA 18

Angus Frederick Waterman (appellant) v. Her Majesty the Queen (respondent) (18/36) Indexed As: R. v. Waterman 2020 NLCA 18 5 C.A.N.L.R. 470 Court of Appeal of Newfoundland and Labrador Welsh, White and Butler JJ.A. May 27, 2020

Summary: Five allegations of a sexual nature were alleged to have occurred between 1977 and 1981. Angus Waterman was found guilty by a jury of indecent assault and gross indecency against a male complainant contrary to the Criminal Code . Mr. Waterman appealed his convictions on the basis that the verdicts were unreasonable and unsupported by the evidence. Inconsistencies between what the complainant alleged happened in prior statements and his testimony at trial were in issue. The complainant explained, at trial, that the inconsistencies arose as a result of counselling.

Held: Appeal allowed (Butler J.A. dissenting). Welsh J.A.: The complainant’s counselling sessions and their effect were critical to assessing whether the complainant’s inconsistencies were neutralized by his explanation. The circumstances of this case called for expert evidence to explain considerations that would have been relevant in assessing the effect of the complainant’s counselling.

Given the nature and extent of the inconsistences and the manner in which the complainant recovered the memories, it could not be said that the jury had the necessary tools to reasonably resolve doubt created by the inconsistencies. As such, a properly instructed jury acting judicially could not reasonably have rendered a verdict of guilty beyond a reasonable doubt (paragraphs 9-27). White J.A. (concurring): The evidence of the complainant was not credible and could not have been accepted by a fact-finder, acting judicially.

Any reasonable view of the evidence in this case would have left the jurors, at the very least, with a reasonable doubt as to Mr. Waterman’s guilt. As such, the verdict was unreasonable because it simply could not have been supported on the evidence (paragraphs 38-71). Butler J.A. (dissenting): The complainant acknowledged the inconsistencies and explained that the inconsistencies were a result of counselling.

The trial judge explained to the jury the rules of evidence respecting prior inconsistent statements, and reminded the jury that the complainant had given two prior ______________________________ Reversed, 2021 SCC 5 . statements. The jury decided, after considering the evidence as a whole, that it believed the complainant’s core evidence; it was open to the jury to decide that the complainant had provided an adequate explanation for the inconsistencies. As such, the verdict was reasonable and supported by the evidence (paragraphs 79-97). Cases cited: Welsh J.A.:

R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746 R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 R. v. François, (SCC), [1994] 2 S.C.R. 827 White J.A. (concurring): R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 R. v. Wills, 2014 ONCA 178, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612 R. v. Cabrera, 2019 ABCA 184 R. v. Shlah, 2019 SCC 56 R. v. Baxter, 2013 SKCA 52 R. v. François, (SCC), [1994] 2 S.C.R. 827 R. v. Burke, (SCC), [1996] 1 S.C.R. 474, 139 Nfld. & P.E.I.R. 147 R. v. Kennedy, 2015 NLCA 14, 365 Nfld. & P.E.I.R. 53 R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 R. v.

Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 R. v. Fries, 2017 MBCA 58 Butler J.A. (dissenting): R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 R. v. Wills, 2014 ONCA 178, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612 R. v. C.(R.), (SCC), [1993] 2 S.C.R. 226 R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746 R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 Statutes considered: Welsh J.A.: Criminal Code, sections 151-152, 156-157, 686(1), 724 Butler J.A. (dissenting): Criminal Code, sections 156-157 Counsel: Randolph J. Piercey Q.C., for the appellant; Arnold W.

Hussey Q.C., for the respondent. The appeal was heard on September 17, 2019 before Welsh, White and Butler JJ.A.

The following judgment was filed on May 27, 2020 by Welsh J.A., with separate concurring reasons by White J.A., and dissenting reasons by Butler J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On November 2, 2017, Angus Waterman was found guilty by a jury and convicted of one count each of indecent assault and gross indecency against a male complainant contrary to sections 156 and 157 of the Criminal Code in force at the time of the offences. Mr. Waterman appeals his convictions on the basis that the verdicts were unreasonable and unsupported by the evidence.

BACKGROUND [ 2 ] The indictment, dated November 18, 2016, alleges offences occurring between 1974 and 1981. However, it appears from the evidence that the first incident occurred in 1977 when the complainant was approximately nine years of age, and the last one in 1981 when he was thirteen. At those times, Mr. Waterman was in his early twenties.

Section 156 of the current Code addresses offences occurring prior to 1983, and provides: No person shall be convicted of any sexual offence under this Act as it read from time to time before January 4, 1983 unless the conduct alleged would be an offence under this Act if it occurred on the day on which the charge was laid. [ 3 ] Sections 156 and 157 of the Code , in force at the time of the offences provided, in relevant parts: 156. Every male person who ... indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years. 157. Every one who commits

an act of gross indecency with another person is guilty of an indicatable offence and is liable to imprisonment for five years. [ 4 ] Sections 151 and 152, currently in force, provide: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body ..., any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or ... 152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body ... the body of any person ... (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or ... [ 5 ] In this case, the conduct, which occurred prior to 1983, would have been an offence under the current sections 151 and 152 . Accordingly, the Code permits proceeding with the charges under sections 156 and 157 in force at the time of the offences. [ 6 ] The factual background in this case is best gleaned from the trial judge’s sentencing decision. In the case of a jury trial,

section 724 of the Criminal Code provides for the trial judge to make necessary findings of fact underlying the convictions.

Section 724 provides:

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. ... [ 7 ] I refer, then, to the

summary of the facts in the trial judge’s oral sentencing decision: Facts. Pursuant to s. 724(2) of the Criminal Code , following a verdict of guilty by a jury, the judge must accept as proven all facts essential to the jury’s verdict and may find, as proven, any other relevant fact disclosed by the evidence. The [complainant] described five incidents of a sexual nature involving the offender. The first incident occurred when [the complainant] asked Angus Waterman for

a ride on his motorcycle. When they were on the highway the offender moved [the complainant’s] hands down to his exposed penis. [The complainant] tried to move his hands but the offender put them back on his penis. During the second encounter, Angus Watermantook [the complainant] by motorcycle to the same location, pulled out his penis and told [the complainant] to hold it.

The third incidentalso involved a motorcycle ride to the same location and [the complainant] holding the offender’s penis. [The complainant] testified thefourth occurrence was at Angus Waterman’s apartment. [The complainant] was told to take his pants down. He did so, but left hisunderwear on. Angus Waterman sat down, exposed his penis and began masturbating, but was interrupted by the arrival of his spousewho ordered [the complainant] to leave. The last incident was when [the complainant] was 13 years old. The offender offered him aride in his vehicle.

As Angus Waterman began to pull out his penis, [the complainant] punched him on the side of the face and told [himthat] he would get older and meaner and would come looking for him. ISSUES [8] At issue is whether the verdict of the jury is unreasonable and unsupported by the evidence because the Crown failed to adducethe evidence necessary to prove the offences beyond a reasonable doubt. ANALYSIS The Law [9] Section 686(1) of the Criminal Code provides authority for the Court to set aside a conviction: On the hearing of an appeal against a conviction ... the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, ... [10] Whether a verdict is unreasonable is a question of law (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at paragraph 5). The test tobe applied is discussed in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180: [26] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially couldnot reasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381, at para. 36. ... [32] ...

There are a number of points in François [ (SCC), [1994] 2 S.C.R. 827] that are particularly relevant to thiscase: 1. It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts. AsMcLachlin J. put it, at p. 836: More problematic is a challenge to credibility based on the witness’s alleged lack of truthfulness and sincerity, the problem posed in thisappeal.

The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because ofinconsistencies in the witness’s stories at different times, because certain facts may have been suggested to her, or because she may havehad reason to concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness’s story, inwhole or in part. 2. Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction ... 3.

The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct. Particularly where thecomplainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their power toraise a reasonable doubt with respect to the accused’s guilt”: François, at p. 839. ... 4.

To sum up, the reviewing court must be deferential to the collective good judgment and common sense of the jury. ... [11] After cautioning, at paragraph 27, that the appellate court “must not act as a ‘13th juror’ or simply give effect to vague unease orlurking doubt based on its own review of the written record”, Cromwell J., for the Court, added: [28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to thequestion of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.

Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para.36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”:para. 39 (emphasis added).

Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially couldreasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but alsowhether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40. [12] Cromwell J. continued with some examples, and concluded: [29] ...

What all of these examples have in common is that accumulated judicial experience has demonstrated that they constitute anexplicit and precise circumstance that creates a risk of an unjust conviction. [13] In applying the principles discussed in W.H., it is necessary to consider the factual context within which the Court in that caseallowed the appeal and restored the conviction. In assessing a witness’ credibility, Cromwell J. wrote:

[41] As the Court stated in François, where it is suggested that a witness is not telling the truth because of inconsistencies, becausefacts may have been suggested to him or her by others or because he or she may have reason to concoct the accusations, the jury must inthe end decide whether it believes the witness’s story in whole or in part. “Th[e] determination turns not only upon such factors as theassessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review bya court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court ofappeal”: pp. 836-37. [14] In finding error by the Court of Appeal in W.H., Cromwell J. explained: [43] ...

Of great concern to the Court of Appeal was the inconsistency between the complainant’s initial statement and her subsequentstatements and testimonies. Four of the five inconsistencies which the Court of Appeal found to raise serious questions about thecomplainant’s credibility are grounded in whole or in substantial

part in that initial statement: the inconsistencies regarding the numberand nature of incidents, the location, who was present and whether the complainant was nervous about being alone with the respondent. It seems to me, however, that there are two problems with the Court of Appeal’s approach. [44] The first is that the court overlooked potentially significant parts of the evidence about why that initial statement was notsatisfactory. While the court noted that the RCMP was not satisfied with how the first interview had been conducted, it did not refer tothe trial evidence about why that was the case.

As I outlined earlier, the trial evidence raised a number of specific concerns about theway the first interview had been conducted: the potentially intimidating police station setting, the use of a male interviewing officer, thenumber of persons present, the presence of the complainant’s mother, the lack of rapport between the interviewing officer and thecomplainant and the complainant’s discomfort during the interview. It would not have been unreasonable for the jury, on the basis ofthis evidence, to decide to attach little value to the initial statement by virtue of the conditions under which it was taken.

If the juryreached that conclusion it would of course give little weight to any inconsistencies between that initial statement and the complainant’slater statements and testimonies. [45] The second difficulty, in my respectful view, is that the Court of Appeal, in discounting the complainant’s explanation for theseinconsistencies, engaged in speculative reasoning that has no basis in judicial experience. The court referred to the complainant’sexplanation that she had been uncomfortable speaking to the male police officer and embarrassed to discuss these matters in her mother’spresence.

The court reasoned, however, that while discomfort and embarrassment may help explain omitted incidents, “they do notadequately explain her express denial that any other incidents had occurred”: para. 66.

Similarly, with respect to the location of one ofthe incidents, the court again concluded that while discomfort in the initial interview would go somewhat towards explaining omissions,it “does not adequately explain her express denial of other locations”: para. 67. [46] Respectfully, I am not aware of any basis in fact or judicial experience supporting the view that a witness’s discomfort andembarrassment during an interview may explain some types of inconsistencies but not others.

Rather, in my view, it was open to the juryto accept the complainant’s explanation in whole or in part. [15] In W.H., the inconsistencies arising from the first statement were explained by the circumstances surrounding the interview. InR. v. François, (SCC), [1994] 2 S.C.R. 827, on which Cromwell J. relied in W.H., McLachlin J., for the majority,addressed the question of neutralizing inconsistencies by means of explanations, at page 839: The important point is this. The complainant offered an explanation for each of the alleged inconsistencies. It was open to the jury toaccept those explanations.

If they did, the inconsistencies lost their power to raise a reasonable doubt with respect to the accused’s guilt. The explanations provided a means of reasonably resolving such doubt as may have been created by the inconsistencies themselves.

Itwas for the jury to weigh both the significance of the alleged contradictions and whether such significance as they might have, had beenneutralized by explanations as to why they occurred. [Underlining in original] ... [16] In François, McLachlin J., noted, at page 838, that the “complainant gave a detailed and largely consistent account of what hadhappened to her and why she had acted as she did.” Regarding recovered memory after approximately ten years, McLachlin J.explained, at page 840: This leaves the question of the complainant’s memory block in the early 80s and recovery of memory in 1990 – the “flashback”.

It issuggested that it was unreasonable for the jury not to have a reasonable doubt about the accused’s guilt given the complainant’s evidencethat her memory of the assaults by Mr. François had been blocked, only to be revived after discussions with the people at the Children’sAid Society and the police about the importance of “admission on [her] part that things had happened to [her]”.

Without pronouncing onthe controversy that may surround the subject of revived memory amongst experts, it is sufficient to say for purposes of this appeal thatthe jury’s acceptance of the complainant’s evidence on what happened to her was not, on the basis of the record, unreasonable. Thecomplainant was cross-examined on the possibility of concoction. She denied the suggestion of cross-examining counsel that herrecovered “memory” was a product of the pressures she was experiencing. Thus explored, the matter was left to the good judgment ofthe jury.

It was open to the jury, with the knowledge of human nature that it is presumed to possess, to determine on the basis ofcommon sense and experience whether they believed the complainant’s story of repressed and recovered memory, and whether therecollection she experienced in 1990 was the truth.

To do so cannot be characterized as unreasonable. (Emphasis added.) Application of the Legal Principles [17] In her instructions to the jury, the trial judge summarized the evidence of the complainant, pointing out inconsistencies in hisstatement to the police and his testimony at the preliminary inquiry and at trial: You heard [the complainant] being cross-examined by defence counsel, Mr.

Piercey, regarding discrepancies and differences in hisevidence at trial when compared to the statement to the police and his testimony at the preliminary inquiry. [The complainant] stated tothe police that the first incident involved a car ride. At trial he said it was a motorcycle ride. [The complainant] told you he asked to gofor a motorcycle ride and Mr. Waterman hemmed and hawed, whereas he said at the preliminary inquiry that it was Angus Waterman’s

idea. At trial [the complainant] recalled one time Angus Waterman had an erection. To the police he stated that on many times Angus Waterman would make him “jerk him off” and Mr. Waterman [would] “come in his hand” and Mr. Waterman would lick it off. You heard [the complainant] state that the police statement is not totally accurate and it is what he remembered at that moment. He stated he was all over the place. It was all pieced together like a puzzle [and] that he had to get counselling to get it right. [The complainant] agreed he told police Mr.

Waterman raped him anally as that is what he remembered in 2015. [The complainant] admitted that allegation of anal rape was not accurate. [The complainant] agreed he also told the police he would go to Mr. Waterman’s place and he would make him lie on the floor, then Mr. Waterman would poop and pee on him and smear it over him and ejaculate over him and then make [the complainant] take a shower. [The complainant] explained that a lot he said was triggered by nightmares day in and day out for many years. He stated what he said to the police about the pooping and peeing at Mr.

Waterman’s place was not reality, it was part of a dream. [The complainant] did not say in his statement or at the preliminary inquiry that [Mr. Waterman’s spouse] told him to get out. [The complainant] was shown a diagram of the apartment on Adams Avenue and stated it was not as he remembered it. [The complainant] defriended ( sic ) Mr. Waterman on Facebook when Mr. Waterman’s mother died and he tried to be nice and keep everything quiet.

Then Angus Waterman’s son did something in Twillingate and [the complainant’s] sister sent him a video link and his son’s actions triggered the memoires ( sic ) about Angus Waterman that he had forgotten since 1999. [The complainant] told the police what he remembered at that time which was 2015 and afterwards he got counselling to try to put it together. Crown and defence agreed the Jehovah Witness Church was built Labour Day weekend in 1987. [The complainant] testified that he had punched Mr. Waterman when he was 13 years old [in 1981] on the street at the Jehovah Witness Church. [Mr.

Waterman’s spouse] testified she did not see [the complainant] in any apartment or place they occupied and did not tell him to get out. She did not even own a vehicle with a bench seat until 1985. You heard [Mr. Waterman’s spouse] say they lived at the Adams Avenue apartment between the winter of 1981 and October 1982 and it was not a bachelor apartment as described by [the complainant]. Angus Waterman described the vehicles they owned from 1975 to 1985 as a yellow Toyota, a white SR5 Toyota and a light blue Volare. He purchased a 1975 Norton Commander motorcycle in 1976. Mr.

Waterman stated [the complainant] was not in any vehicle with him or on any motorcycle with him. You heard Mr. Waterman testify that the only incident with [the complainant] was when he suspected he was stealing the licence plate and he told him not to come around his place any more.

Angus Waterman testified nothing of a sexual nature ever occurred between him and [the complainant]. (Emphasis added.) [ 18 ] It is clear that, in her charge to the jury, the trial judge drew attention to numerous significant inconsistencies in the complainant’s statement to the police and his testimony at the preliminary inquiry and at trial. The complainant’s explanation was that what he told the police was what he remembered at that time, that is, prior to counselling. That explanation is different in kind from the explanation the complainant in W.H. gave regarding her first police interview.

In W.H. , the complainant admitted that she had not been forthright and truthful because she felt uncomfortable and embarrassed during the interview. Her inconsistencies amounted to a question of untruthfulness which the complainant explained. It was for the jury to decide whether the contradictions in her testimony were neutralized by her explanation. [ 19 ] The same situation does not apply in this case.

The complainant’s explanation for numerous substantial differences in describing the incidents did not amount to untruthfulness based on the circumstances in which the statement was given to the police, a matter that fell in W.H. within the experience and common sense of the jury to assess. Rather, the complainant explained that he remembered what had happened as a result of counselling. [ 20 ] This leads to the issue raised in François , that is, recovered memory.

In François , the complainant explained that her blocked memory was recovered after ten years when, for purposes of regaining custody of her child, she had spoken to the Children’s Aid Society and the police. She testified that “her memory of the assaults by Mr. François had been blocked, only to be revived after discussions with the people at the Children’s Aid Society and the police about the importance of ‘admission on [her] part that things had happened to [her]’” (at page 840). This is very different from recovering a memory through or by means of counselling.

Indeed, McLachlin J. indicated that, in the circumstances, it was unnecessary to address “the controversy that may surround the subject of revived memory amongst experts” ( François , at page 840). [ 21 ] In this case, the numerous substantial inconsistencies in what was alleged by the complainant when he went to the police to give a statement and what he later testified to arose directly from the complainant’s access to counselling. He admitted that some of what he told the police had not happened in reality, but was triggered by nightmares or was part of a dream.

He testified that he had to have counselling “to get it right”, to get it “all pieced together like a puzzle”. [ 22 ] It is clear that the complainant’s counselling sessions and their effect were critical to assessing whether the inconsistencies, which were numerous and substantial, were neutralized by the complainant’s explanations.

That is, issues related to counselling, such as the manner in which the recovered memory was triggered, the passage of forty years, the effect of dreams and nightmares, the age of the complainant at the time of the incidents, and in particular, the potential for tainting or suggestion, etc. were, of necessity, engaged. In François , McLachlin J. wrote that it was not necessary, on the facts of that case, to comment on “the controversy that may surround the subject of revived memory amongst experts” (at page 840).

In that case, counselling was not used to revive or refine the complainant’s memory. [ 23 ] By contrast, the circumstances in this case call for expert evidence to explain considerations that would be relevant in assessing the effect of the complainant’s counselling, particularly insofar as factors and concerns would not fall within the ordinary experience and common sense of the members of a jury.

However, the Crown, which had the onus of proving the offences beyond a reasonable doubt, did not adduce expert evidence to assist the jury in assessing the possible effect of counselling on the complainant’s explanation for the numerous and substantial changes in his story. [ 24 ] In some cases, the jury, applying its experience and common sense, would be in a position to assess the complainant’s evidence without the assistance of expert evidence.

However, given the nature and extent of the inconsistencies in this case, and the manner in which the complainant recovered the memory by relying on counselling, it cannot be said that the jury had the necessary tools to

reasonably resolve such doubt as may have been created by the inconsistencies. This amounted to a failure by the Crown to provide the necessary evidentiary basis for a conviction. [ 25 ] In the circumstances, a properly instructed jury acting judicially could not reasonably have rendered a verdict of guilty beyond a reasonable doubt. Accordingly, the verdict must be set aside. Because this amounted to a failure by the Crown to adduce evidence sufficient to prove its case beyond a reasonable doubt, an acquittal is the appropriate remedy.

SUMMARY AND DISPOSITION [ 26 ] The jury did not have the evidence necessary to enable it reasonably to resolve such doubt as may have been created by the numerous and substantial inconsistencies in the complainant’s evidence where the complainant recovered the memory through and by means of counselling, and there was no expert evidence regarding the effect of such counselling. [ 27 ] Accordingly, I would allow the appeal, set aside the convictions, and enter an acquittal on all charges. White J.A.: INTRODUCTION [ 28 ] The appellant, Angus Frederick Waterman, was charged with one count of committing an indecent act and one count of committing

an act of gross indecency on the complainant in relation to incidents which occurred some 40 years prior to his trial. The appellant was between the ages of 19 and 25 during this period, while the complainant was between the ages of 9 and 13. [ 29 ] The trial before a judge sitting with a jury took place in late 2017. The jury entered guilty verdicts on both counts. The appellant now appeals the jury’s verdict arguing that the verdict was unreasonable and unsupported by the evidence.

BACKGROUND [ 30 ] The complainant made several allegations of criminal sexual activity against the appellant that occurred on five separation occasions. The allegations are: a. When the complainant was approximately 9 years old, the appellant took him for a ride on his motorcycle. The complainant sat on the back of the motorcycle. The appellant pushed the complainant’s hands down onto his penis, which was “hanging out”. The complainant could not remember if the appellant’s penis was erect during this incident. b. The appellant drove the complainant to the woods where the appellant was building a house.

The appellant took his pants down and defecated. He flicked his feces onto the complainant with a stick. He then had the complainant hold his penis while he urinated. c. The appellant took the complainant on another motorcycle ride and brought the complainant into the woods near the area where the appellant was building a house. The appellant took his penis out. The complainant could not remember if the appellant’s penis was erect. The appellant had threatened the complainant that, if he told anyone, the appellant would beat the complainant and rape him anally. d.

The fourth incident occurred about one and a half years after the third. The appellant, while driving a car, approached the complainant, got out of his car, grabbed the complainant, beat him, and drove the complainant to his house. The appellant made the complainant remove his pants. The appellant then masturbated. When the appellant’s wife walked by a window, the appellant ran to the bathroom. The appellant’s wife sent the complainant home. e. The final occasion occurred about two years after the fourth occasion. The appellant gave the complainant a ride in his car. The appellant began to pull his pants down.

The complainant punched him and told him to stop the car. The complainant then got out of the car. [ 31 ] At trial, the complainant testified that he left the province when he was 17 years old. He stated that the reason he left was because of the impact the incidents described above had on him. [ 32 ] The complainant further testified that he was operating a tractor trailer in Quebec in 2015 when his sister sent him a video link that depicted the appellant’s son jumping over a counter at a grocery store.

He testified that this video brought back memories from when he was a teenager, as well as the things the appellant had done to him. He then went to the police in London, Ontario and gave them his statement about the incidents. [ 33 ] During cross-examination, the complainant was asked about several inconsistencies between his initial statement to the Ontario police and his later statements made at a preliminary inquiry, as well as his testimony before the jury. Counsel for the appellant also pointed out inconsistencies between the complainant’s testimony and the evidence of both the appellant and his wife.

The inconsistencies can be summarized as follows: a. The complainant told the jury that the first incident where the appellant forced him to touch the appellant’s penis occurred on a motorcycle, but in his initial statement to the police, he said the incident occurred in a car.

b. The complainant told the jury that he asked the appellant to go for a ride on the appellant’s motorcycle, but at the preliminary inquiry,testified that it was the appellant who invited him on a motorcycle ride. c. The complainant told the jury that on one occasion the appellant had an erection, but in his statement to police, he had said that theappellant made him masturbate the appellant on more than one occasion, which implied that the appellant had an erection on more thanone occasion. d.

The complainant initially told police that the appellant had ejaculated on his hand, but this allegation was not made to the jury. e. The complainant told the jury that the appellant had threatened to rape him, but told police that the appellant had in fact raped him. f. The complainant told the jury that the appellant would threaten to defecate and urinate on him, but he told police that the appellanthad defecated and urinated on him and would “jerk him off”. g.

The complainant told the jury that he had been to the appellant’s house once, but his statement to the police implied that he was at theappellant’s house more than once. h. The complainant told the jury that he thought the incident in the appellant’s apartment occurred in 1978 or 1979 when he would havebeen 10 or 11, but the appellant led evidence that he did not move to this apartment until 1981. i.

The complainant told the jury that two incidents occurred in the appellant’s car and that this car had bench seats, but the appellant’swife testified that they did not own a car with bench seats until 1985. [34] When counsel for the appellant questioned the complainant about these matters during cross-examination, the complainant statedthat he was telling the truth based on what he could remember from when he was a child. He acknowledged the inaccuracies in hisstatement to the London police and stated the reason for the inaccuracies was because “it was a memory that was like a puzzle.

It had tobe pieced together”. The complainant explained that attending counselling after his initial statement to police assisted him in piecing hismemories together. At several points during cross-examination, the complainant referred to “nightmares” he would have about theappellant over the years and indicated that he had trouble separating these nightmares from what actually occurred. [35] In both his factum and at the hearing of this appeal, counsel for the appellant acknowledged that some of these inconsistencies,on their own, would not result in an unreasonable jury verdict.

The appellant’s argument is that the more serious inconsistencies,combined with the minor inconsistencies, result in an unreasonable verdict because the accumulation of inconsistencies precluded afinding that the offences had been proven beyond a reasonable doubt. ISSUE [36] The appellant does not allege that the judge’s charge to the jury was inadequate or improper. [37] The sole issue in this appeal is whether the jury’s verdict was unreasonable and unsupported by the evidence.

THE LAW [38] The Supreme Court of Canada commented thoroughly on the proper approach a reviewing court must take in determining theunreasonableness of a jury verdict in W.H.: 26 A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially couldnot reasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.) at p. 185; R. v. Biniaris, 2000 SCC 15,[2000] 1 S.C.R. 381 (S.C.C.) at para. 36.

While the same test was traditionally applied to verdicts by both juries and trial judges, themore recent jurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in the case of verdictsreached by trial judges: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 (S.C.C.); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3(S.C.C.).

This development recognizes a practical distinction between reasonableness review of a trial judge's verdict and of a juryverdict: judges, unlike juries, give reasons for their findings which the appellate court may review and consider as part of itsreasonableness analysis. However, this expanded reasonableness review of verdicts entered by trial judges does not apply toreasonableness review of a jury verdict. 27 Appellate review of a jury’s verdict of guilty must be conducted within two well-established boundaries.

On one hand, thereviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw andheard the evidence as it unfolded.

The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurkingdoubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has areasonable doubt based on its review of the record. [39] Justice Cromwell, writing for the Court, went on to clarify that the role of an appellate court in reviewing a jury’s verdict is notlimited to assessing the sufficiency of the evidence (paragraph 28).

Rather, an appellate court is required to review, analyze and weighthe evidence within the limits of appellate disadvantage and consider whether, through the lens of judicial experience, judicial fact-finding precludes the conclusion reached by the jury (paragraph 28). [40] Put another way, an appellate court must ask whether there is evidence in the record that supports the verdict, as well as whetherthe jury’s verdict conflicts with the bulk of judicial experience.

It is insufficient for a court of appeal to refer to a “vague unease, or alingering or lurking doubt based on its own review of the evidence” (Biniaris, at para. 38). While such doubt may be a trigger for anappellate court’s scrutiny of the evidence, it is not, without a further articulation of the basis for such doubt, a proper basis on which tointerfere with the findings of a jury (Biniaris, at para. 38). [41] This essentially creates a two-step test. First, a reviewing court must, after reviewing the evidence presented at an otherwise

error-free trial, be left with some suspicion or doubt respecting the evidence put before the jury. Such suspicion, on its own, is not justification for interfering with the conviction, but may be a useful signal that the verdict was reached in a non-judicial manner. If such suspicion exists, the court must proceed with its analysis and ask whether, in the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury ( Biniaris , at paras. 38-39 ).

If this question is answered in the affirmative, the unreasonableness of the jury’s verdict will be apparent to the legally trained reviewer ( Biniaris , at para. 39 ). [ 42 ] The fact that no challenge has been made to the charge to the jury, does not preclude an appellate court’s ability to review a jury’s verdict.

In some cases, the totality of the evidence and the particular set of facts “will lead an experienced jurist to conclude that the fact finding exercise applied at trial was flawed in light of the unreasonable result that it produced” ( Biniaris , at para. 39 ). [ 43 ] The lens of judicial experience was discussed by the Ontario Court of Appeal in R. v.

Wills , 2014 ONCA 178 , aff’d 2014 SCC 73 , [2014] 3 S.C.R. 612 : 30 The "lens of judicial experience" refers to the appellate court's examination of the cogency of the evidence as informed by the court's awareness of the risk of wrongful convictions associated with certain kinds of cases and certain kinds of evidence. The court, as an institutional participant in the criminal justice system, has an appreciation of those risks that a jury in a specific case cannot have. 31 Section 686(1)(a)(

i) requires the appellate court to independently weigh the totality of the evidence. The court weighs the evidence, however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determining whether the verdict is beyond the reasonableness limit.

In making that assessment, the court must give due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold. [Citations omitted.] [ 44 ] Where a jury verdict is based on the jury’s assessment of a witness’s credibility, the verdict is “not immune from appellate review for reasonableness” ( W.H. , at para. 2 ). However, an appellate court must treat the jury’s verdict with great deference.

An appellate court must ask whether the jury’s verdict can be supported on any reasonable view of the evidence and whether the conclusion reached by the jury would be precluded if proper judicial fact finding was applied to the evidence. [ 45 ] An appellate court does not need to identify an error before interfering with a jury verdict. In R. v. Cabrera , 2019 ABCA 184 , the Alberta Court of Appeal stated that an “appellate court must actually identify an error that makes the jury verdict unreasonable” (at para. 27).

On appeal to the Supreme Court of Canada, the Court did not endorse this position and stated, “a determination that the jury’s verdict was unreasonable is itself an error of law warranting appellate intervention” ( R. v. Shlah , 2019 SCC 56 , at para. 2 ). An extricable error is therefore not a prerequisite to a finding that the jury’s verdict is unreasonable. [ 46 ] While the Supreme Court of Canada imposed a high standard for overturning a jury verdict, it did not foreclose such a result.

The Court noted that it is impossible to exhaustively catalogue the cases in which judicial experience might suggest that a jury’s verdict is unreasonable ( W.H. , at para. 29 ), thereby leaving open the possibility depending on the circumstances of a particular case. In my view, this is such a case. ANALYSIS [ 47 ] The appellant argues that the jury’s verdict in this case was unreasonable largely due to the inconsistencies in the complainant’s statements at various points throughout the proceedings.

The appellant also points to the complainant’s demeanour as a means of questioning his credibility and, in turn, the reasonableness of the verdict. In other words, the appellant argues that the complainant was not a credible witness and it was unreasonable for the jury to accept his evidence in convicting the appellant. [ 48 ] The appellant relies on R. v. Baxter , 2013 SKCA 52 , for the proposition that a reviewing court may take into consideration a witness’s demeanor in the overall assessment of their credibility.

The appellant generally argues that the complainant refused to answer questions on cross-examination and was otherwise argumentative or avoidant. Counsel for the appellant suggests that this consideration is neither as strong nor as weighty as the contradictory evidence, but that it can be used in considering whether a jury verdict can be seen as unreasonable. [ 49 ] In my view, the argument that the complainant’s demeanour somehow suggests that he was not a credible witness can be given very little or no weight by this Court. The demeanour of a witness is not something this Court has the luxury to assess.

While inconsistencies in the evidence may be susceptible to the review of a court of appeal, the ability to assess the demeanour of a witness is an advantage possessed by the trier of fact ( François ). The jury was in a better position to consider the demeanour of the complainant. [ 50 ] With respect to the inconsistencies, it must be stated at the outset that a jury is entitled to determine how much weight to give individual and cumulative inconsistencies in the evidence.

A jury must decide how much or how little of the witness’s testimony it accepts, notwithstanding difficulties in this evidence or a witness’s alleged untruthfulness ( François , at 836). This sets a high threshold for an appellate court to interfere with a jury’s verdict. [ 51 ] In this case, the appellant’s argument that the verdict was unreasonable rests almost entirely on the numerous inconsistencies alleged and their cumulative effect. It is necessary to distinguish between the kinds of inconsistencies that the appellant argues resulted in an unreasonable verdict.

The appellant points to inconsistencies in time and place, and other circumstances such as whether the alleged incidents occurred on a motorcycle or in a car, or whether an alleged incident occurred in a car with bench seats or bucket seats. [ 52 ] To the extent that some of the inconsistencies may be considered minor, it is important to note that the jury heard evidence from both the appellant and the appellant’s wife that contradicted certain elements of the complainant’s testimony pertaining to some of these inconsistencies.

In particular, the appellant’s wife, who was not cross-examined by the Crown, stated that she and the appellant did not live together in the apartment where one of the incidents was alleged to have occurred until 1981, while the complainant stated that it occurred in 1978 or 1979. The appellant’s wife also stated that she never encountered the complainant at the apartment. She further recalled that the only car owned by the appellant that had bench seats was in the mid-1980s, which was after any of the alleged events were said to have occurred.

Therefore, the jury was left with the complainant’s recollection of events, which he acknowledged to be flawed, and the appellant’s wife’s version of events, which was not contradicted.

[53] Nevertheless, the events in question took place decades before the complainant gave his statement to the police. It isunderstandable that there might be some differences between the recollections of the complainant and the evidence of the appellant’swife. The jurors were entitled to factor this into their deliberations and they were entitled to assess the complainant’s overall credibility inlight of the inconsistencies. The jury was entitled to accept the complainant’s version of events over that of the accused and his wife inthis regard.

Indeed, the appellant’s evidence was not entirely clear on some of these points. For example, in his testimony, he stated thatit was hard for him to remember exactly when he moved out of one apartment and into another. I accept that the jury may simply havebelieved the complainant with respect to details such as the exact location and timing of the incidents.

However, these inconsistenciesmust be viewed in the entirety of the evidence, including what I would view as the more significant inconsistencies in this case and theircumulative effect. [54] Of particular concern are the inconsistencies between the complainant’s initial statement to London police and his testimonybefore the jury respecting the nature of the acts that he alleged to have occurred.

Stating to the police that the accused actuallycommitted certain acts, but later telling the jury that the accused merely threatened such acts; or characterizing the nature of the incidentsquite differently, are significant inconsistencies in the complainant’s testimony.

Read together with matters such as in which house orapartment an event took place or whether events took place on a motorcycle or in a car, or in a car with or without bench seats, thecumulative effect of the inconsistencies, both more or less significant, should raise suspicion in any judicial reviewer as to whether theCrown has established proof beyond a reasonable doubt.

Thus, the first step in the analysis is satisfied and now it is necessary toproceed to the ultimate question whether, considering the totality of the evidence a reasonable jury could have come to the conclusion itdid. [55] At trial, the complainant provided his explanation for the inconsistencies in his evidence. He stated that the inaccuracies betweenhis initial report to police and his statement to the jury were largely due to the fact that, between the making of these two statements, hehad the benefit of attending counselling.

Through this process, he was able to piece his memories together so that, by the time he was infront of the jury, his statements, he swore, were accurate. This was his explanation for the inconsistencies, which the jury had todetermine whether or not they believed.

This explanation also applied to the inconsistency between the complainant’s testimony at thepreliminary inquiry and at the trial, though the preliminary inquiry took place well after the statements to London police. [56] In her charge to the jury, the trial judge warned the jury about relying on the complainant’s evidence if they believed it wasinconsistent with his prior statements: … [I]t is up to you to decide whether or not the prior statements are inconsistent with the evidence which [the complainant] gave here inthis courtroom, but it would be very dangerous for you to accept [the complainant’s] testimony if you decide the prior sworn testimony isinconsistent with the sworn evidence he gave here to you unless you are satisfied with his explanation.

The reason for this isstraightforward. Where a witness tells inconsistent stories under oath at different times, it indicates that the witness does not take asolemn oath very seriously. [57] There was no question that the complainant’s testimony was inconsistent with his prior statements.

During cross-examination, thecomplainant himself acknowledged that there were inconsistencies between his retelling of events at various points throughout theproceeding, thereby making his credibility an issue for the jury. [58] The jury was not made aware of what the complainant discussed in counselling or how counselling may or may not have resultedin a more accurate recollection of the events.

Viewed through the lens of judicial experience, a jury acting judicially requires more than acomplainant providing his or her own justification for making drastically different earlier statements where the explanation given by thecomplainant calls for unverified assumptions as to how professional counselling could have assisted the complainant in sorting out hismemories. [59] In my view, the complainant’s evidence was of such a nature that it was unsafe to rely on it as the basis for a conviction. Asimilar result was reached by the Supreme Court of Canada in R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, 139 Nfld. &P.E.I.R. 147. In that case, the Court found that the obvious inconsistencies and falsehoods in the alleged victims’ evidence madeunreasonable the trial judge’s finding that the witnesses were credible. While this was not a jury verdict, Sopinka J., writing for theCourt, went so far as to say that he could not accept that “any trier of fact, acting judicially, could have found any merit in the claims”(emphasis added) of either of the witnesses (Burke, at 494). In this case, the complainant’s evidence was of a similar nature.

It wasfraught with material inconsistencies which would cause any reasonable juror to question whether the allegations were proven beyond areasonable doubt. [60] The entirety of the inconsistencies in this case, when viewed comprehensively, and the absence of any explanation for theinconsistencies that was supported with evidence, would leave significant suspicion in the mind of any trier of fact as to the overallreliability of the complainant’s testimony. The suspicion created in this case is more than “vague unease” or “lurking doubt”, whichalone would not be enough to signal that a further analysis is needed.

Rather, upon reviewing the evidence put before the jury, seriousdoubts arise in relation to the complainant’s reliability resulting in concern that the jury relied on this evidence in convicting theappellant. [61] Therefore, this Court must proceed with its analysis and answer the ultimate question to be decided – whether the conclusionreached by the jury, is precluded by judicial fact-finding in the circumstances of this case (Biniaris, at para. 39). [62] In this case, I am of the view that the jury’s conclusion cannot be supported on any reasonable view of the evidence.

I make thisdetermination notwithstanding the deference afforded to the jury on matters of credibility. The complainant’s evidence containedmultiple and significant inconsistences. Judicial experience led to the conclusion that the very process in which the evidence wasweighed must have been flawed. [63] The jury was required to review the evidence cumulatively. The concept of the cumulative effect of the evidence was previouslydiscussed by this Court in R. v. Kennedy, 2015 NLCA 14, 365 Nfld. & P.E.I.R. 53.

In that case, Rowe J.A., writing for the Court,referred to a decision of the Supreme Court of Canada in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, wherein it was held that “it is

an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt” (at para. 9). Instead, the evidence must be looked at as a whole. [ 64 ] In Kennedy , this Court characterized the trial judge’s approach to the evidence as a “piecemeal analysis” (at para. 18). The judge considered the individual items of evidence that pointed away from the accused’s guilt and concluded that a reasonable doubt was not raised. This was not the correct approach.

Rather, the judge should have considered the cumulative effect of the evidence that pointed toward the accused’s guilt and weighed that evidence against the cumulative effect of all the evidence that pointed away from the accused’s guilt. This is how the reasonable doubt standard should be applied. [ 65 ] The appeal in Kennedy was from a trial judge’s decision and not a jury verdict. The judge gave written reasons for her decision. This meant that this Court had the benefit of reviewing the trial judge’s reasons in reaching a conclusion on her approach.

An appellate court does not have this benefit when reviewing a jury verdict. Nevertheless, a jury is still tasked with assessing and weighing the evidence judicially. [ 66 ] In this case, judicial fact-finding requires the approach to reasonable doubt as described by this Court in Kennedy . The question before this Court is whether the properly instructed jury acting judicially could reasonably have been satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence ( R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000 , at para. 55 ; R. v.

Fries , 2017 MBCA 58 , at para. 10 ). [ 67 ] For the reasons stated above, the evidence of the complainant was not credible, and could not have been accepted by a fact- finder, acting judicially. [ 68 ] The complainant acknowledged that his memories were “like a puzzle” and he did not explain how this puzzle was pieced together during counselling. What could the jury have found credible about such inconsistent evidence?

What basis did the evidence provide for the jury’s conclusion? [ 69 ] Judicial fact-finding would require weighing the complainant’s evidence, with all of its inconsistencies, together with the evidence of the accused and the accused’s wife. Had the jury taken this approach, it would have been left with a reasonable doubt as to the accused’s guilt and the only result would be to acquit the appellant. [ 70 ] Viewing all the inconsistencies in the complainant’s evidence, the jury, applying the correct approach to the evidence, could not have reached the conclusion it did.

Any reasonable view of the evidence in this case would have, at the very least, left the jurors with a reasonable doubt as to the appellant’s guilt had those jurors acted judicially. The verdict is therefore unreasonable because it simply cannot be supported on the evidence. DISPOSITION [ 71 ] I would allow the appeal, set aside the convictions, and enter an acquittal on all charges.

Butler J.A. (Dissenting): INTRODUCTION [ 72 ] I am unable to agree with the majority’s conclusion that the jury verdict was unreasonable. [ 73 ] In reaching this conclusion my colleagues have correctly identified the test that applies to appellate review of a jury’s verdict of guilt.

However in my view, in the application of the test, the majority has failed to be deferential to the collective good judgment and common sense of the jury. [ 74 ] I would conclude that the majority’s approach is contrary to the principles expressed in Biniaris and W.H. which decisions caution an appellate court not to act as a thirteenth juror or to accede to a “vague unease, or a lingering or lurking doubt based on” their “own review of the evidence” ( Biniaris at para. 38 ; W.H. at paras. 27-34 ). [ 75 ] In addition, I disagree with my colleague, Welsh, J.A.’s suggestion that without expert evidence to assist, assessment of the complainant’s explanation for the inconsistencies was not within the experience or common sense of the jury (para. 24).

This position was not argued on the appeal and, in my view, would warrant comprehensive submissions on the necessity of expert opinion. [ 76 ] I also disagree with my colleague, White, J.A.’s suggestion that in order to convict, the jury would require additional evidence for the complainant’s explanation for the inconsistencies in his evidence (para. 60).

BACKGROUND [ 77 ] The appellant was convicted of indecent assault on a male and of gross indecency pursuant to sections 156 and 157 of the Criminal Code in effect at the time. [ 78 ] Counsel agreed with the trial judge’s instruction to the jury on the essential elements of the offences, namely: (

a) that indecent assault required proof by the Crown beyond a reasonable doubt, of the dates and places of the alleged offences, identity of the person alleged to have committed the offences, that the offender was male and that the events involved force (physical contact) by the alleged offender upon a male person in circumstances of indecency, and

(

b) that gross indecency required proof (again), of date, place and identity, and

an act by the alleged offender in relation to a personwhich amounts to a very marked departure from the decent conduct expected of the average Canadian. ANALYSIS Application of the Test for Appellate Review of a Jury’s Verdict of Guilt Step One - Was there some evidence which, if believed, supports the conviction? [79] The appellant submits as his sole ground of appeal that the verdicts rendered were unreasonable and could not be supported bythe evidence because the complainant was not credible.

Specifically, the appellant alleges that: 1. the complainant’s testimony at trial was “outrageously” inconsistent with his 2015 statement to the London, Ontario police authoritiesand his preliminary inquiry testimony in October 2016; and 2. the complainant’s demeanor at trial was argumentative and aggressive. [80] I agree with White, J.A. that the complainant’s demeanor is not a ground for challenging his credibility. However, I consider itessential to add that the complainant was not consistently argumentative or evasive and was prepared to acknowledge vagueness ofmemory or inconsistencies.

I also note that defence counsel when cross-examining the complainant said “I’m gonna tell the jury, sir,that you’re an idiot is what I’m gonna to tell the jury”.

The complainant’s emotional response to such a statement may have beenconsidered by the jury as appropriate. [81] My colleague, White, J.A. has summarized the inconsistencies raised by the appellant and described how the complainantresponded to these matters during cross-examination. [82] Notwithstanding these inconsistences however, counsel agree that, at the very least, to convict on charges of indecent assault andgross indecency, the jury would have had to accept that the appellant placed the complainant’s hands on the appellant’s penis or had thecomplainant touch the appellant’s penis while the complainant was a child under thirteen years of age.

On these facts, essential to thejury’s verdict, it has never been suggested, nor does the record support, that the complainant’s story ever varied between what he told thepolice in London, Ontario in 2015, testified before the preliminary inquiry judge in October, 2016 or testified to the jury at trial. [83] Since I would have no suspicion or doubt whether there was evidence, which believed, supports the conviction, I would have noneed to consider step two. Nevertheless I shall do so for completeness.

Step Two - Does the jury’s conviction conflict with the bulk of judicial experience? [84] An appellate court weighs the evidence “not with a view to making its own assessment as to the appropriate verdict, but for themore limited purpose of determining whether the verdict is beyond the reasonableness limit.

In making that assessment, the court mustgive due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold.” (Wills, at para. 31) [85] The majority has determined that it was insufficient to rely on the complainant’s evidence as the basis for a conviction. [86] In W.H. (as here) the trial judge’s instructions to the jury were acknowledged to be error-free.

In restoring the convictionsentered at trial, the Court established the principles applicable to this appeal particularly where it is suggested that the allegedunreasonable verdict is based on an assessment of witness credibility. [87] I would summarize these as follows: 1. The reviewing court must give due weight to the advantages of the jury as the trier of fact and not act as a “13th juror” or give effectto vague unease or lurking doubt which results from a review of the record. (para. 27) 2.

On the other hand, a positive answer to the question of whether there is some evidence, which, if believed, supports the convictionstill requires the court to review, analyze and, ask whether the jury’s conclusion conflicts with the bulk of judicial experience. (para. 28) 3. “Credibility is, of course, a question of fact and it cannot be determined by fixed rules. Ultimately, it is a matter that must be left tothe common sense of the trier of fact . . . .: (para. 31 citing R. v. C.(R.), (SCC), [1993] 2 S.C.R. 226 (S.C.C.) 4.

It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts.(para. 32) 5. Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction butalso on the demeanor of the witness and the common sense of the jury. (para. 32) 6. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct.

Particularly wherethe complainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their powerto raise a reasonable doubt with respect to the accused’s guilt”. (para. 32)

7. The question of whether a verdict is reasonable is one of law; whether a witness is credible, is a question of fact. (para. 33) 8. A verdict based on credibility assessment is unreasonable if the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence. (para. 34) [ 88 ] Several of the inconsistencies in the complainant’s evidence identified by White J.A. were minor and immaterial to the offences charged.

In my view, in light of the complainant’s age at the time, and the number of years that had passed between the alleged events and his testimony, such inconsistencies would not cause a judge to be cautious and mindful of the risk of a wrongful conviction. [ 89 ] There were inconsistencies in the evidence of the appellant as well. The appellant said that in 1979 he was married, living on Adams Avenue and for a couple of months prior thereto had lived in an apartment across the street from his mother’s home where he stayed until 1982.

Later however he said that he had been living with his grandparents between 1978 and 1979. [ 90 ] In addition, there were inconsistencies between the evidence of the appellant and his wife.

The appellant’s wife’s testified that the couple had lived together since 1977, first in an apartment on Circular Road, later in an apartment on Park Plaza in 1979 and finally (between either January or March of 1981 and October of 1982) in an apartment on Adams Avenue where they stayed until their home was ready. [ 91 ] I accept that the differences which the complainant acknowledged on cross-examination between his original statement to the police and testimony on the preliminary inquiry (including that the appellant had raped him and peed on him) and his trial evidence that these were not actual occurrences but threats by the appellant, are more serious inconsistencies.

However, the complainant acknowledged them and explained that through counselling he had been able to separate his nightmares from reality. In my view, it would be dangerous to suggest that expert opinion was required in order for the jury to accept the complainant’s explanation. [ 92 ] In light of the elements of the offences with which he was charged, the jury did not have to rely on this portion of the complainant’s original statement in order to convict.

I agree however that the question is whether the inconsistencies on the whole cast doubt on the veracity of the evidence which (at a minimum) had to be relied upon to convict. [ 93 ] In this regard, the trial judge’s instruction was impeccable. She explained the rules of evidence respecting prior inconsistent statements, reminded the jury that the complainant had given two prior statements and explained that it was up to them to decide whether or not the complainant’s testimony was inconsistent with the prior statements.

To assist them in assessing the evidence, the judge posed specific questions to the jurors for their consideration. [ 94 ] The jury was properly instructed as follows: ● It is the duty of the jury to place their own

interpretation on the evidence because the jury is the judge of the facts arising from the evidence. ● That if, based on the evidence, the jurors are sure that the offences have been committed, there should be a conviction since this demonstrates that the jury is satisfied of guilt beyond a reasonable doubt. ● A jury must decide what evidence to believe and how much weight or import to be given to each witness. ● That when considering the evidence, a juror does not have to accept or reject everything a witness says; a juror can accept some and reject the rest of what was said. ● That innocent discrepancies do not mean that the testimony of a witness must be rejected as such discrepancies in minor matters are often unimportant. [ 95 ] The identified inconsistencies do not go to the core evidence which established the elements of the offences.

The jury decided after considering the evidence as a whole, that it believed the complainant’s core evidence. It was open to the jury to conclude that, as between the complainant on the one hand and the appellant and his wife on the other, they believed the complainant. It was open to the jury to decide that the complainant provided an adequate explanation for the inconsistencies and that his demeanor did not give cause to question his credibility. Each of these tasks are the domain of the trier of fact.

It is up to them “to determine what effect the passage of time might have had and how vulnerable the witness was in light of his or her age and the factual content” ( R. v. R.P. , at para. 17 ). In such a case the accused’s guilt would be the only reasonable conclusion available on the totality of the evidence ( Villaroman , at para. 55 ). [ 96 ] While not exhaustive, the Court in W.H. provided examples of the circumstances in which “accumulated judicial experience may suggest that a jury’s verdict is unreasonable”.

These examples all “have in common … that accumulated judicial experience has demonstrated that they constitute an explicit and precise circumstance that creates a risk of an unjust conviction” (at para. 29 citing Biniaris , at para. 41 ). In my view, inconsistencies of the nature my colleague, White J.A. has identified do not constitute such an explicit and precise circumstance. CONCLUSION [ 97 ] For these reasons I would dismiss the appeal and confirm the convictions entered at trial. Appeal dismissed (Butler J.A. dissenting).