Robert Bryce Taylor Appellant v. Her Majesty the Queen Respondent DECISION Judge: The Honourable Justice Peter P. Rosinski, 2021 NSSC 120

SUPREME COURT OF Nova Scotia Citation: R. v. Taylor , 2021 NSSC 120 Date: 20210428 Docket: 503248 Registry: Halifax Between: Robert Bryce Taylor Appellant v. Her Majesty the Queen Respondent DECISION Judge: The Honourable Justice Peter P. Rosinski Heard: March 30, 2021, in Halifax, Nova Scotia Counsel: Patrick MacEwen, for the Appellant Stephen Anstey, for the Respondent By the Court: Introduction [ 1 ] Mr. Taylor appeals his conviction on multiple

summary conviction offences. [ 2 ] I dismiss his appeals from conviction. Background [ 3 ] Mr. Taylor and Megan Maclean had an ongoing intimate relationship between May 2018 until February 24, 2019. On March 2, 2019, he was charged with offences between July 4, 2018, and February 24, 2019 [1] : Count 10, s. 267(

a) CC , July 5, 2018 : Mr. Taylor had a butter knife and threw it overhand approximately 15 feet across the room at Ms. Maclean and hit her in the collarbone which “split my collarbone open” [Ms. Maclean took a photo of the cut which was entered into evidence]. Count 11, s. 267(

a) CC , July 21, 2018 : Mr. Taylor and Ms. Maclean had an argument, and he grabbed her face with his hand and told her to “shut the fuck up” and then pushed her down on the bed – he then took a fan out of the window area went over to Ms. Maclean who was laying on the bed and hit her with the ceiling fan causing blood to “just start gushing everywhere” as a result of her left eyebrow being split wide open. They went to the hospital and she received stitches [Ms. Maclean took photos thereof which were entered into evidence].

Count 5, s. 266 CC , shortly after the July 21, 2018 , fan incident [which she clarified was actually “ early October 8 ” (paras. 12 and 55 Decision): Mr. Taylor punched her in the left arm and kicked her in the left side of her leg [Ms. Maclean took photos showing a bruise on the left side of her leg and left arm which were entered into evidence]. Count 1, s. 430(4) CC, October 29, 2018 : While at Ms. Maclean’s home, she brought up concerns about Mr. Taylor’s infidelity – he wanted to leave her premises and she wanted an explanation.

He was asking for his keys and she claimed not to have them, but they were there somewhere. He threatened to punch a hole in the wall if he did not get his keys – he followed through and put his fist through the wall to the other side of the bathroom – he

told her young son to “shut the fuck up and get back upstairs” and did find his keys inside of the couch and left. [Ms. Maclean tookphotos of the damage which were entered into evidence.] Count 6, s. 266 CC, January 5, 2019: While they were out on a drive in his vehicle, an argument ensued and consequently Mr. Taylor punched her on the side of her face in herleft eye area and hit her in her stomach several times with his fist; he also slapped her in the mouth area with his right hand, and grabbedher by the hair and forcefully banged the right side of her head into the Jeep’s window [Ms.

Maclean took photos which were enteredinto evidence of a black eye, cuts to the inside of her lip, including the left side of her eyes swelled and puffed out, and later photos of herbruised eye area]. Count 7, s. 266 CC, January 10, 2019: The two were arguing in Ms. Maclean’s home when Mr. Taylor punched her in her right eye area [Ms. Maclean took photos which wereentered into evidence showing her right eye blackened, and then three days later both eyes were blackened]. Count 12, s. 267(

b) CC, February 4, 2019: At Mr. Taylor’s apartment an argument ensued and Mr. Taylor took Ms. Maclean by the collar of her shirt with both hands and lifted heroff the bed and slammed her back down – then he used his right hand to punch her in the left arm. She testified “I remember feeling…like it was a warm wave came over my body and it felt like I was going to vomit… So I knew something had happened bad”. She wantedto go to the hospital. He refused. She could not lift her arm and he left for work.

She placed her arm in a scarf and took photos in hisbathroom. [Those photos were entered into evidence showing her shirt ripped, her left arm across her chest in a sling, swelling of the leftforearm, an x-ray of her arm taken in the emergency room on February 7, 2019.] Her ulna bone was broken. She had a cast for nineweeks or more. She told the doctor she fell down the stairs because she was embarrassed and scared about what would happen if she toldthe truth. She also did not want Mr. Taylor to get in trouble. Mr.

Taylor suggested, and she agreed, to make up a story that she hadtripped over the dog and she fell down the stairs causing the injury. Count 8, s. 266 CC, February 23, 2019: They were out at a movie theatre, when they became embroiled in an argument. Mr. Taylor stormed out of the theatre with Ms. Macleanfollowing him into the parking lot, where he spit in her face. They got in his Jeep and were still screaming – they returned home to hisapartment and in the doorway Mr. Taylor grabbed Ms.

Maclean’s face with his hand covering her mouth squeezing it “really hard”saying “not one fucking word”; he then shoved her back placing his right hand around her neck pinning her against the wall and said“you’re going to shut the fuck up and you’re going to go in there and sit down and not say a fucking word….”. Approximately half an hour later a text message received by her suggested that Mr. Taylor had cheated on her, yet he denied it. Herrefusal to disclose the details caused him to grab her with his hands and throw her onto the floor where he began kicking her.

He told herto leave but she refused – he called his stepfather, Robert Gordon Taylor, who arrived not long afterward. A few days later she contactedthe police and reported these incidents to police. [4] The trial judge, Judge Jean Whalen of the Provincial Court, noted at paras. 39 and 41 that Ms. Maclean testified that “I wouldnever get in Bryce’s face… I was terrified of him”. She continued in her decision: Ms. Maclean’s reason for taking photos was because she thought maybe one day Mr.

Taylor might murder her, but she agreed that thisincident on July 5 wasn’t indicative of a pattern she thought might escalate into a homicide. [5] At trial the trial judge found that Ms. Maclean hid the injuries she received because, among other things - she did not want herson to see them - and used makeup to cover them; however her father and mother did ask her after seeing them what happened, but shewould never say Mr. Taylor did it. The Grounds of Appeal[2] Conviction 1. The judge erred by shifting the burden of proof to Mr. Taylor. 2.

The judge erred in the task of considering certain evidence relating to the credibility of Ms. Maclean. 3. The judge erred in her application of R. v. WD when assessing the credibility of Ms. Maclean and Mr. Taylor. 4. The judge erred in confusing an assessment of credibly [sic] and reliability of Ms. Maclean. Standard of Review [6] Generally speaking, as Justice Cromwell (as he then was) stated for the court in R. v. Grouse, 2004 NSCA 108, (leave denied[2004] SCCA No. 495): 40. In Buhay, the Court referred to its leading decision on standards of appellate review in civil cases, Housen v.

Nikolaisen, 2002SCC 33 , [2002] 2 S.C.R. 235. The standard of review analysis in Housen turns in large part on the characterization of thequestion before the court as one of law, fact or mixed law and fact. In this context, the characterization is conducted quite differently

than in the jurisdictional context. The object of the standard of review analysis is to identify the appropriate level of deference to theinitial decision-maker and requires more particular examination of the nature of the precise issue raised in the case. 41. There is no controversy that a trial judge's decision on pure questions of law, that is respecting the applicable legal rules, isreviewed on the standard of correctness. Thus, as stated in Oickle, the determining of the appropriate legal test is a question of lawreviewed on the correctness standard: at para. 22; see also R. v.

Tessier, 2002 SCC 6 , [2002] 1 S.C.R. 144. There is also noquestion that determining the facts, drawing inferences from them and assessing the weight to be given to the evidence are to be treatedwith great deference on appeal even where, as in the case of appeals from conviction, the court has appellate jurisdiction in relation toquestions of fact: see Buhay; Fitton. These principles are set out by Charron, J.A. (as she then was) in R. v. Moore-McFarlane (2001), (ON CA), 160 C.C.C. (3d) 493 (Ont.

C.A.) at para. 68 where she stated that the judge's finding of voluntariness isentitled deference on appeal and "... should not be interfered with in the absence of legal error in determining the test, or overriding andpalpable error with respect to the facts." (Emphasis added) 42. More difficult is the question of the applicable standard of review for questions concerning the application of the principles to thefacts.

It is clear after Oickle that, for standard of review purposes, the application of the principles of voluntariness to the facts is either amixed question of law and fact or a question of fact: Oickle at para. 22 With respect to mixed questions of law and fact, the applicablestandard of review was adopted in Buhay from Housen: the palpable and overriding error standard should be applied "... unless it isclear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application,in which case the error may amount to an error of law": Housen at para. 37 as adopted in Buhay at para. 45. 43.

In Housen, the majority of the Court held that the standard of review on mixed questions of law and fact, such as the applicationof a legal standard to the facts, lies along a spectrum: para. 36. Where the decision is traceable to some "extricable error in principle",the standard of review is correctness: para. 37. This may occur, for example, if the legal test requires consideration of certain factors butthey are not all considered by the judge: Housen at para. 27 citing Canada (Director of Investigation and Research) v. SouthamInc., (SCC), [1997] 1 S.C.R. 748 at para. 39.

Otherwise, mixed questions of law and fact should be reviewed on thepalpable and overriding error standard. 44. In

summary, I would state the applicable principles of the standard of appellate review of a finding of voluntariness in a convictionappeal as follows: 1. The judge's findings of fact, including the weight to be assigned to the evidence and the inferences drawn from the facts, are to bereviewed on the standard of palpable and overriding error: Buhay at para. 45. 2. The judge's statements of legal principle are to be reviewed on the standard of correctness: Oickle at para. 22. 3.

The judge's application of the principles to the facts is to be reviewed on the standard of palpable and overriding error unless thedecision can be traced to a wrong principle of law, in which case the correctness standard should be applied: Buhay at para. 45; Housenat para. 37. [My italicization added] [7] Trial judges must correctly cite and interpret the applicable law.

Regarding the application of the law to the facts, andspecifically in the case of the proper application of the WD principles, which concern proof of the offence beyond a reasonable doubt andthe credibility of witnesses, Justice Cromwell’s reasons in R. v. Mah, 2002 NSCA 99, (which was an appeal from a

summary convictionappeal court decision) govern in the case at Bar: 33 In this Court, the appellant raises six issues set out in his factum in these terms: 1. Incorrect Legal Test - Where Credibility in Issue - The Learned

Summary Conviction Appeal Justice erred in law byfinding that the Learned Trial Judge correctly applied the legal test required by the Supreme Court of Canada in the case of R. v .W.(D.) [D.W.], (SCC), [1991] 1 S.C.R. 742; [1991] in order to be satisfied that the charges alleged were proven beyond areasonable doubt where the credibility of the appellant and complainant were in issue. 2. Unreasonable or unsupported Verdict - The Learned

Summary Conviction Appeal Justice erred in law by finding that theLearned Trial Judge rendered a verdict that is reasonable and can be supported by the evidence. 3. Misapprehension of Evidence - The Learned

Summary Conviction Appeal Justice erred in law by finding that the Learned TrialJudge did not misapprehend the evidence as presented at the trial. 4. Stereotypical Thinking or Unproven Conclusions - The Learned

Summary Conviction Appeal Justice erred in law by findingthat the Learned Trial Judge rendered a verdict that was not based on or materially influenced by stereotypes or unproven assumptions orconclusions about older men and younger women, and their respective sexual behaviors and preferences. 5. Improper Weight Given to Relevant Defence Evidence - The Learned

Summary Conviction Appeal Justice erred in law infinding that the Learned Trial Judge did not reject or fail to give appropriate weight to all or portions parts of the relevant evidencetendered on behalf of the defense. 6. Incorrect Inferences from Testimony - The Learned

Summary Conviction Appeal Justice erred in law in finding the LearnedTrial Judge did not reach incorrect conclusions or draw incorrect inferences from portions of the testimony tendered on behalf of theAppellant and/or Respondent. 34 These issues may be restated by saying that the

Summary Conviction Appeal Court judge erred in failing to find that thetrial judge had committed three main errors. The first is that the trial judge erred by evaluating credibility as if it were a contestbetween the Crown and the defence rather than by addressing the question of whether there was a reasonable doubt based on all

of the evidence. The second is that the trial judge erred by applying stereotypical assumptions to his evaluation of the accused'scredibility. The third is that the trial judge erred by ignoring or misapprehending significant evidence that ought reasonably to haveaffected his assessment of the evidence. 35 Each of these three points revolve around the question of whether the judge erred by failing to consider whether he had areasonable doubt in light of all of the evidence. This is a question of law.

It concerns the application of the burden of proof to theevidence according to the legal principles set out by the Supreme Court of Canada in R. v. W.(D.)[D.W.], (SCC),[1991] 1 S.C.R. 742; [1991] S.C.J. No. 26 (Q.L.). 36 It is important to remember that it is not the role of an appellate court "... to intervene simply because it thinks the trial court did apoor job of expressing itself.": Sheppard, supra at para. 26. This Court's role is to determine whether the

summary conviction appealcourt judge erred on a question of law alone. [My bolding added] Mr. Taylor’s Position Conviction Appeal [8] Mr. Taylor’s written arguments may be reduced to the following - the trial judge erred: 1. in her application of the so-called R. v. WD analysis (paras. 127-134) - I conclude that a standard of correctness applies; 2. in shifting the burden of proof from the Crown to Mr. Taylor (paras. 119-126) - I conclude that a standard of correctnessapplies; and 3. in making her analysis and assessment of Ms.

Maclean’s credibility (paras. 96-115) - I conclude that this is to be reviewedon the standard of palpable and overriding error unless the decision can be traced to a wrong principle of law, in which case thecorrectness standard should be applied; 4. in confusing the principles of reliability and credibility when making her assessment of witnesses’ credibility (paras. 135-138) - I conclude that this is to be reviewed on the standard of palpable and overriding error unless the decision can be traced to a wrongprinciple of law, in which case the correctness standard should be applied[3]. [9] These conclusions were also confirmed in R. v.

Quartey, 2018 ABCA 12, affirmed 2018 SCC 59[4]: 15 Assessments of credibility involve questions of fact that are afforded deference and should not be overturned in the absence of apalpable and overriding error: R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621. Reversal of the burden of proof is an error oflaw, reviewable on a correctness standard. . . . 35 As cited with approval in R v Davis, [1999] 3 SCR 759, at para 103: It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning waseffectively neutralized by other passages.

This is especially true in the case of a judge sitting alone where other comments made by himor her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved.

As McLachlin J. saidin [R v CRB, (SCC), [1990] 1 SCR 717, at p 737]: "[t]he fact that a trial judge misstates himself at one point shouldnot vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified onthe evidence." [My italicization added] Why I conclude the trial judge did not err in relation to her WD analysis and credibility assessments [10] Although much has been written about the so-called WD analysis required in criminal cases[5], the principles are not oftendisputed, rather it is their misapplication that forms the substance of appeal grounds – as it is in this case. [11] Moreover, I will bear in mind what Justice Cromwell (as he then was) stated in R v Mah, 2002 NSCA 99: 41 The W. (D.) principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention.

Rather, W.(D.) describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choosebetween alternative versions and having done so, convict if the complainant's version is preferred. W. (D.) reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, [2000] S.C.J. No. 57 (S.C.C.), at 756.

As Binnie, J. put it in Sheppard, the ultimate issue is not whetherthe judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminaltrial is not credibility but reasonable doubt.

42 The judge did not expressly instruct himself in terms of the so-called W. (D.) formula nor did he at any point in his reasons statethat he had considered all of the evidence in light of the reasonable doubt standard. However, as Matthews, J.A. said in R. v.Brown (1994), (NS CA), 132 N.S.R. (2d) 224, [1994] N.S.J. No. 269 (N.S. C.A.) at para. 19, the failure of the trialjudge to use the language of Cory, J. in R. v. W. (D.) does not of itself constitute reversible error.

The question is whether, uponconsideration of the whole of the judge's decision, it is apparent that the judge did not apply the proper test or did not address " . . . hismind, as he was required to do, to the possibility that despite having rejected the evidence of the respondent, there might nevertheless . . .be a reasonable doubt as to the proof of guilt": Sheppard at para. 65. [My italicization added] 1-the trial judge did not reverse the burden of proof of the essential elements of the offences beyond a reasonable doubt, andeffectively place it upon Mr.

Taylor by requiring him to raise a reasonable doubt [12] Mr. Taylor argues that the following are the instances where the trial judge did shift the burden of proof to him:

a) by finding various aspects of Ms. Maclean’s evidence as “plausible” [13] If the trial judge concluded that Ms. Maclean’s evidence was merely “plausible” in deciding whether there was proof beyond areasonable doubt of the elements of the offences here, and relied thereon in convicting Mr. Taylor, that would be an error. However, as Iread the trial judge’s reasons, that is not what happened here. [14] In his written argument Mr. Taylor stated: “… The trial judge used a repeated and curious expression throughout herassessment of Ms.

Maclean’s credibility on numerous occasions – the trial judge described the complainant’s version of events and heractions thereafter as “plausible”.… By relying upon the evidence and explanations of the complainant as plausible, the trial judgeappears to be satisfied that the evidence of the complainant might be true… [and] found that Ms. Maclean’s explanation for remainingwith Mr. Taylor was plausible… [and] that there was a lack of animosity between the complainant and Mr. Taylor and that she remainedwith him because she loved him [see also para. 202 Decision]… [and] found that Ms.

Maclean’s explanation for the timing of herdisclosure to police was plausible”. (paras.116-126) [15] Let me first outline the examples referenced by Mr. Taylor. [16] In her decision and under

Part V, “Analysis” we find: 1. “Ms. Maclean stayed in the relationship with Mr. Taylor because she ‘loved him’. This is plausible.” (para. 195) 2. “Ms. Maclean testified after they broke-up she surrounded herself with friends and family and told them what happened. Itwas a few days after this that she called the police. This is also plausible.” (para. 197) 3. “She offered a plausible explanation [for why she did not disclose to the police and other persons the details of theseallegations before late February 2019]; she was in love with Mr.

Taylor and wanted to make it work.” (para. 202) [17] When assessing credibility- as opposed to determining whether there has been proof beyond a reasonable doubt of the elementsof the offence- the use of the word “plausible” is not problematic. [18] In R v Kiss, 2018 ONCA 184 the Court stated in a similar circumstance at para. 31: “The plausibility of KS’s account was a central theme in this case. The trial judge was doing no more in referring to the preponderance ofprobabilities in responding to defence challenges to the plausibility of KS’s account.

The trial judge was saying that he found KS’s storyto be plausible, i.e. in harmony with the way things can and do happen. It was appropriate for the trial judge to have done so.”[6] [19] Furthermore, the court went on to emphasize that, “the appropriate question is not whether any particular credibility orreliability challenge raises reasonable doubt; it is whether the evidence as a whole leaves a reasonable doubt. For this reason, it is notadvisable to explain the rejection of individual challenges by referencing the ultimate standard of proof for a conviction.” (para. 33)

b) by the following statements in her Decision: i) “I cannot dismiss outright that Ms. Maclean made up these allegations to get back at Mr. Taylor for breaking up withher. This motive must be examined in light of all of the other evidence to determine whether a reasonable doubt has been raised. Amotive to lie is not, in itself, evidence of a lie.” (para. 190) This reference is in relation to a preliminary consideration of Ms. Maclean’s credibility - the trial judge’s reference identifies the real

source of concern cited by Mr. Taylor which is that Ms. Maclean had a motive to lie about Mr. Taylor’s past conduct because hepermanently broke-up with her in late February 2019. I will address this below including under the categories regarding Ms. Maclean’s“motive to lie” and that the trial judge did not “gloss over” inconsistencies in Ms. Maclean’s evidence, ii) “All of the circumstances surrounding her testimony and the manner in which she related it to the court gives me confidenceit is reliable even with Mr. Taylor’s denial and explanation and consideration of all evidence from all the witnesses. Ms.

Maclean’sevidence displaces any reasonable doubt. (para.224). [20] I understand the trial judge to have been saying that regarding the core allegations of each offence made by Ms. Maclean, forwhich only Mr. Taylor and Ms. Maclean were present, and for which Mr. Taylor denied culpability, she was satisfied that Ms.

Maclean’sevidence (viva voce testimony and corroborating photographs) rose to a level that she was satisfied, as the court stated in R v TA, 2020ONCA 783: 36 To invoke J.J.R.D., a trial judge must assess the whole of the evidence and reject the defence evidence based on a considered andreasoned acceptance of the Crown's evidence: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused's evidence: J.J.R.D., at para. 53. iii) “Mr.

Taylor’s evidence falls into two categories. The first is his denial of the allegations or an explanation of accident. It isdifficult to elaborate on this denial. There is nothing inherently untruthful or contradicting in his denial. Mr. Taylor’s evidence mustbe contrasted with the evidence of the complainant and all the other witnesses… to be given its context.

It is impossible to give fullconsideration to the denial without considering it and testing it in light of the details of the allegations.” (paras. 187 – 188) [21] Again, the trial judge is in the preliminary stages of assessing credibility. [22] The trial judge did not shift the burden of proof of guilt to Mr.

Taylor. 2-the trial judge did not mis-apply the WD analysis [23] I reiterate Justice Cromwell’s statement in Mah at para. 42: “The trial judge did not expressly instruct himself in the terms of the so-called WD formula nor did he at any point in his reasons statethat he had considered all the evidence in light of the reasonable doubt standard. However, as Matthews JA said in R v Brown, (1994) (NS CA), 132 NSR (2d) 224 …at para. 19, the failure of the trial judge to use the language of Cory J in R v WD doesnot of itself constitute reversible error.

The question is whether, upon consideration of the whole of the judge’s decision, it is apparentthat the judge did not apply the proper test or did not address ‘… his mind, as he was required to, to the possibility that despite havingrejected the evidence of the respondent, there might nevertheless… be a reasonable doubt as to proof of guilt’: Sheppard at para. 65.” [My italicization added] [24] The trial judge cited the appropriate law, in referencing Judge Alan Tuft’s (as he then was) decision in R v Hawkes, 2017NSPC at paras 121 – 136 (at paras. 180 – 181 of her Decision). [25] Mr.

Taylor argues that the trial judge merely compared the evidence of the two people who were present at each of thesealleged offences, namely Ms. Maclean and Mr. Taylor, and effectively preferred her evidence over his (para. 134 brief). [26] He elaborates that “at no point in time does the trial judge dismiss the evidence of Mr. Taylor or find it to be unworthy ofbelief”.[7] [27] A review of the trial judge’s entire decision satisfies me that she did not make the errors argued by Mr.

Taylor. [28] I bear in mind that the WD analysis in its simplest form has been stated as: 1. if you believe the evidence of the accused, you must acquit[8] 2. if you do not believe the evidence of the accused, but are left in a reasonable doubt by it, you must acquit; and 3. if you do not believe and are not left in a reasonable doubt by the evidence of the accused, you must consider whether, on the basisof the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[29] Under the heading “Analysis” the trial judge considered Mr. Taylor’s evidence to fall into two categories: “The first is hisdenial of the allegations or an explanation of accident… The second category of evidence is the evidence to undermine the credibility ofthe allegations made by Ms. Maclean.” [paras. 187-189 Decision] [30] The latter category includes: 1- “Ms. Maclean complains of being abused, yet chose to stay in the relationship; 2- Ms. Maclean took the photos of her alleged injuries and [yet] several witnesses never observed any injuries including Mr. Taylor,except her broken arm in a cast; 3- Ms.

Maclean didn’t take Mr. Taylor’s “rejection” well, and she wanted to get back at him; 4- (After he finally broke up with her) she sent text messages to Mr. Taylor telling him she would tell the police everything he did toher.” [31] The trial judge examined Mr. Taylor’s evidence, Ms. Maclean’s evidence, all the other evidence, and concluded: “I find noreasonable doubt in her evidence. But that does not end the matter.” (paras. 211-12) [32] Regarding his evidence she stated: “I have tested Mr. Taylor’s evidence against that of Ms. Maclean’s and all the other evidence.

When tested this way, it cannot be said tocause a reasonable doubt. It’s not a matter of finding her version of events to be more believable. Neither is it a matter of not accepting itor just not believing Mr. Taylor’s evidence when it contradicts Ms. Maclean’s. All of the circumstances surrounding her testimony and the manner in which she related it to the court gives me confidence it is reliableeven with Mr. Taylor’s denial and explanation and consideration of all evidence from all the witnesses. Ms. Maclean’s evidencedisplaces any reasonable doubt. Based on the evidence I find and accept Ms.

Maclean’s testimony of the incidents and injuries received.[paras. 223-225 Decision] [33] I conclude that the trial judge did not believe Mr. Taylor’s evidence on the core allegations, nor did it (including the materialevidence of his other witnesses and considering the cross-examination of Ms. Maclean) raise a reasonable doubt. [34] The trial judge was satisfied beyond a reasonable doubt of Mr. Taylor’s guilt based on her acceptance of Ms. Maclean’stestimony (including the photographic evidence). [35] Notably, the trial judge stated: “the issue is one of reasonable doubt and reasonable doubt may be found in Mr.

Taylor’sevidence, Ms. Maclean’s evidence, or any other evidence put before the court.” (para. 206)[9] [36] I conclude that the trial judge did not err in applying the required WD analysis[10]. 3-the trial judge did not err in her credibility assessment methodology and conclusions - inter alia she did not gloss over argued“inconsistencies” in Ms. Maclean’s evidence [37] The governing principles are set out in R v RA, 2017 ONCA 714 (affirmed 2018 SCC 13). Per the majority:

(1) The first ground of appeal Did the trial judge fail to resolve a critical inconsistency and fail to explain why he accepted the complainant's evidence and rejected theappellant's? … 43 The principles that govern this ground of appeal are not in doubt. 44 First, the trial judge's credibility findings are owed significant deference on appeal. They should not be interfered with unless they"cannot be supported on any reasonable view of the evidence": R. c. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746 (S.C.C.); and R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 (S.C.C.), at para. 7. 45 Second, significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. c. Gagnon, 2006SCC 17, [2006] 1 S.C.R. 621 (S.C.C.), at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt".However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or herreasons: R. v. R. (C.), 2010 ONCA 176, 260 O.A.C. 52 (Ont. C.A.), at para. 48.

46 Third, an appellate court should not interfere with a trial judge's findings of credibility if the core of the complainant's allegationsagainst an appellant remain largely intact on a review of the entirety of the evidence: R. v. Roy, 2017 ONCA 30 (Ont. C.A.), at para.14; R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83 (Ont. C.A.), at paras. 7-8; and R. v. Marleau (2005), (ON CA), 197O.A.C. 29 (Ont. C.A.), at para. 7; And by Justice Trotter in dissent: 77 I accept that trial judges are not required to address every inconsistency that arises on the record. However, this leeway has limits.

Ireturn to M. (A.), in which the court addressed this issue, at para. 14: A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness'evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at para.64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of materialwitnesses: G. (M.), at p. 356; R. c.

Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), at para. 31. [Emphasis added.] [38] The trial judge stated: “None of the suggested “inconsistencies were sufficiently material to have an impact on my view of hertestimony.” (para. 205) I will go on to address the specific alleged significant inconsistencies in this case, but note I find that there is noapparent error by the trial judge in how she assessed those inconsistencies.

i) Why did Ms. Maclean not leave, and why did she repeatedly try to get back with him – going so far as to makerepeated calls to him after the relationship seemed permanently ended – if there were repeated violent instances as she testifiedand she was fearful of Mr. Taylor? [39] I find helpful to cite a statement of the legal principles, by Justice Beveridge in R v WJM, 2018 NSCA 54 (see also para. 3 in Rv Quartey, 2018 SCC 59 per Brown J.): 50 The appellant says the trial judge engaged in impermissible stereotypical reasoning to reject his evidence.

He relies on the recentdecision of the Supreme Court of Canada in R. v. A.R.J.D., 2018 SCC 6 (S.C.C.) where the Court substantially accepted the majorityreasons of the Alberta Court of Appeal. … 57 The law has long banned any mandatory adverse presumption about when a complaint of sexual assault should have been made,and no inference should be drawn regarding a complainant's credibility that is based on assumptions about how a victim is supposed toreact to the assault (see: R. v. G. (A.D.), 2015 ABCA 149 (Alta.

C.A.) at paras. 31-33). 58 However, the Crown regularly leads evidence about how a complainant behaved before and after the alleged abuse and how and inwhat circumstances the complaint came to be made, including its timing. Defence counsel frequently explore these issues in cross-examination. It can be circumstantial evidence that informs a credibility assessment (see: R. v. Ay (1994), (BC CA),93 C.C.C. (3d) 456 (B.C. C.A.) at paras. 38-40; R. v. H. (J.), (ON CA), [1996] O.J. No. 2537 (Ont. C.A.) at para.14; R. v. Laing, 2017 NSCA 69 (N.S.

C.A.) at para. 80). 59 In this case, the trial judge's assessment of the appellant's evidence was based not on stereotypical generalizations abouthow the appellant should have behaved, but how he did behave. … 62 The judge's reasons for rejecting the appellant's explanations were based squarely on the record, not on stereotypicalassumptions. I would not give effect to this ground of appeal.

[My bolding added] [ 40 ] The trial judge did examine why, if these incidents occurred, Ms. Maclean did not earlier end the relationship. The trial judge did so under the heading “lack of animosity”. While the choice of wording could be seen as infelicitous, I understand it to be an attempt to reflect a

summary of the issue being considered: were Ms. Maclean’s complaints to police, fabricated out of spite that the relationship had been ended by Mr. Taylor, as opposed to being truthful accounts that she had delayed reporting? [ 41 ] Mr. Taylor refers to this as “inconsistencies” in the evidence of Ms. Maclean. [ 42 ] This was cast by Mr. Taylor as a factor that should undermine Ms. Maclean’s credibility – i.e. the lack of previous disclosure to the police, until it appeared Mr.

Taylor was permanently ending their relationship in February 2019. [ 43 ] Regarding the lack of earlier disclosure to police, the trial judge did not resort to stereotypical behaviour reasoning expected of a purported victim of such abuse (see paras. 182-186 Decision). [ 44 ] She examined the circumstances of this specific case and concluded at para. 195 that: “Up until February [2019] Mr. Taylor agreed that he and Ms. Maclean argued, they would get back together. He even had her address on his Recognizance (end of January [2019]). Ms. Maclean stayed in the relationship with Mr. Taylor because she ‘loved him’.

This is plausible.” [ 45 ] While there may have been tension between the two throughout the relationship (which lasted from May 2018 until February 24, 2019) the significant incidents referenced in the evidence before the trial judge occurred on: July 5; July 21; early October; October 29; January 5; January 10; February 4; and February 23, 2019. [ 46 ] There is no error in the trial judge coming to her conclusion. ii) The fact that Ms. Maclean’s complaint to the police only came at the end of the relationship and after Mr.

Taylor said he would have to call police to keep her away from him and his business [ 47 ] The trial judge addressed this issue starting at paras. 196-197: “It wasn’t until Mr. Taylor threatened to call the police that Ms. Maclean texted ‘I’m telling them everything you did to me’. So, did Ms. Maclean then create all these alleged incidents and create the photos to go with them? Ms. Maclean testified after they broke up, she surrounded herself with friends and family and told them what happened. It was a few days after this that she called police.

This is also plausible.” [ 48 ] The trial judge examined the evidence, and concluded, inter alia : “This lack of disclosure to the police during their relationship by Ms. Maclean supports inference she was not using these allegations to further a purpose, i.e. to keep Mr. Taylor in their relationship, to have things go her way (even in January 2019). Mr. Taylor testified he was interested in making things work. Even Mr. Taylor reconciled in January and used her address as late as January 31 on his Recognizance. ‘He wanted to work things out’. She offered a plausible explanation; she was in love with Mr.

Taylor and wanted to make it work.” (paras. 201-2 Decision). [ 49 ] There is no error in the trial judge coming to her conclusion. [ 50 ] Nor did the trial judge use these facts in order to bolster the credibility of Ms. Maclean. She referenced them to assess Ms. Maclean’s credibility, since it was Mr. Taylor’s position that her credibility should be undermined by the fact that she stayed in the relationship, and that her complaint to the police only came after Mr. Taylor had unequivocally ended the relationship. 4-Mr.

Taylor says the trial judge erred in relying on what were properly considered to be neutral factors, to bolster the credibility of Ms. Maclean [11] [ 51 ] Mr. Taylor references the trial judge’s reasons under the bolded heading “ Factors Supporting Complainant’s Version ” – which include: “1. Lack of animosity”; and “2. Details of the disclosure”.

i) Lack of animosity/details of disclosure [ 52 ] As I noted above: The trial judge did use the heading “lack of animosity”. While the choice of wording could be seen as infelicitous, I understand it to be an attempt to reflect a

summary of the issue being considered: were Ms. Maclean’s complaints to police, fabricated out of spite that the relationship had been ended by Mr. Taylor, as opposed to being truthful accounts that she had delayed reporting? The trial judge did not use the ensuing facts in order to bolster the credibility of Ms. Maclean, but rather to assess Ms. Maclean’s credibility, since it was Mr. Taylor’s position that her credibility should be undermined by the fact that she stayed in the relationship, and that her complaint to the police only came after Mr.

Taylor had unequivocally ended the relationship. [ 53 ] That these aspects were included within the heading “Factors Supporting Complainant’s Version” can give the impression that

the trial judge used these factors to bolster the credibility of Ms. Maclean. However, an examination of the entirety of the trial judge’sreasons, and what she said about those factors make it clear that the trial judge concluded that they did not detract from Ms. Maclean’scredibility, and in answer to Mr. Taylor’s position therefore could be viewed as “supporting the complainant’s version”. [54] Notably, immediately after concluding Ms. Maclean had offered plausible explanations in relation to those factors, the trialjudge stated: “Regarding Ms.

Maclean’s evidence, no conclusion as to its credibility, reliability, believability or acceptance can be made until all of theevidence has been considered and tested against that evidence. After reviewing all the evidence I heard, I find her evidence to be reliable. None of the suggested ‘inconsistencies’ were sufficientlymaterial to have an impact on my view of her testimony. But that is not the end of the issues. This is not a contest between two competingversions, Ms. Maclean versus Mr. Taylor. The issue is one of reasonable doubt and reasonable doubt may be found in Mr. Taylor’s evidence, Ms.

Maclean’s evidence, or any otherevidence put before the court. The issue of motive must be considered. Is Ms. Maclean lying about all these incidents because Mr. Taylor broke up with her and shedoesn’t take rejection well? Nothing in the evidence, however, permits a reasonable inference to be made that she was acting on such a motive. The circumstancesoutlined in her disclosure and her testimony weigh against that.” [paras. 204-208 Decision] [55] When the trial judge says: “The circumstances outlined in her disclosure and her testimony weigh against that”; I interpret thejudge as saying she considered whether Ms.

Maclean fabricated the details of the allegations in order to get back at Mr. Taylor forbreaking up with her (ie the motive for her disclosure to police) – and she concluded based on the evidence that Ms. Maclean was not somotivated to make her complaint to the police in February 2019. [56] The trial judge did not make the errors argued by Mr. Taylor. ii) “lack of embellishment” [57] Mr. Taylor argues that when a witness does not embellish their testimony it is a neutral factor; if the trial judge uses this as afactor to bolster the credibility of Ms.

Maclean, it is an error. [58] The law surrounding this area was helpfully canvassed by the court in R v Kiss, 2018 ONCA 184: (

c) THE LACK OF EMBELLISHMENT 51 On two occasions when evaluating K.S.'s testimony, the trial judge commented that he found no examples of her exaggerating orembellishing her testimony. Mr. Kiss asserts that the trial judge erred in law by using the lack of exaggeration or embellishment toenhance K.S.'s credibility. I am not persuaded that this error occurred. 52 The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of K.S.'s testimony.It is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v.

G. (G.) (1997), (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at p.10, [1997] O.J. No. 1501 (Ont. C.A.); R. v. L. (L.), 2014 ONCA 892 (Ont.C.A.), at para. 2; R. v. G. (R.), 2008 ONCA 829 (Ont. C.A.), at para. 20. While identified exaggeration or embellishment is evidenceof incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthfuland dishonest accounts can appear to be without exaggeration or embellishment. 53 On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminishedcredibility are absent.

As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to notethat a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in awitness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are,however, explanations for why a witness has not been found to be incredible. 54 Trial judges are presumed to know the law. In this case, there is no basis for apprehending that the trial judgeinappropriately added weight to K.S.'s credibility.

In my view, on a fair reading of the reasons for judgment, the trial judge wassimply recording that K.S.'s evidence did not suffer from a problem of exaggeration or embellishment that would have diminished itsweight. He did not err on this ground. [59] The trial judge only twice uses the word “embellish(ed)”:

“Ms. Maclean testified in a straightforward manner. She did not embellish her testimony e.g. hole in wall. She agreed (in cross-examination) Mr. Taylor did not assault her that day, he did not punch her or force or from the door. She readily admitted this July 3incident happened in October – she got date mixed up and gave a plausible explanation for remaining with Mr. Taylor” (the October 29,2018 incident described at para 191 Decision); and “The description of each incident is straightforward. The detail given by Ms. Maclean does not appear to be embellished. In the July 5incident in cross-examination Ms.

Maclean agrees she didn’t tell the police officer that Mr. Taylor grabbed her face. Nor did she tell thepolice officer that you broke up with Mr. Taylor. She readily agreed during the January 5 incident that she did not receive any injurieswhen Mr. Taylor punched her in the stomach. Sometimes she couldn’t remember what their arguments were about (neither could Mr.Taylor)… This lack of disclosure to the police during the relationship by Ms. Maclean supports inference she was not using theseallegations to further a purpose, i.e. to keep Mr.

Taylor in their relationship, to have things go her way(even in January).… She offered aplausible explanation: she was in love with Mr. Taylor and wanted to make it work.” [paras. 199-202 Decision] [60] I conclude there is no basis for apprehending that the trial judge inappropriately added weight to Ms. Maclean’s credibility. iii) The trial judge did not use Ms.

Maclean’s admissions during trial that acknowledged she had been inconsistent ( as betweenher testimony and her statements to police, and inconsistent as between different portions of her testimony at trial) to bolster hercredibility – and therefore did not err in that respect [61] This argument overlaps with a consideration of whether the trial judge bolstered Ms. Maclean’s credibility based on her “lackof embellishment”, considered above. I similarly conclude that there is no basis for apprehending that the trial judge inappropriatelyadded weight to Ms.

Maclean’s credibility. [62] By way of example - the trial judge stated: “I do not find that her answers were scripted or stated with 100% certainty. She readily admitted getting dates mixed up, for example, forone matter (October versus July). If her answers were stated with certainty (e.g. what every argument was about) or precisely when theygot back together, I might be inclined to question her reliability”. (paras. 209-210) iv) the trial judge did not err in her treatment of the so-called “motive to fabricate” of Ms.

Maclean [63] A consideration of this factor could also be seen to be included within the references to “lack of animosity” discussed above. [64] Insofar as the governing principles are concerned, helpful comments can be found in R v Ignacio, 2021 ONCA 69[12]: 22 The trial judge rejected the defence's allegation that the complainant had a motive to fabricate. He commented on motive in twoparagraphs, the first of which is the contentious one for the purpose of this appeal and is placed under the heading "[The Complainant's]Evidence": I note as well that [the complainant] had no motive to falsely accuse Mr.

Ignacio of a serious crime. To the contrary, it is clear from theevidence that prior to the sexual activity, she liked Mr. Ignacio and hoped to get to know him better. In making this observation, I ammindful that the burden of proof is on the Crown and that there is therefore no obligation on an accused to demonstrate why a witnesswould testify falsely: R. v. Krack (1990), (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.), at pp. 561-562. Nonetheless,this is a factor to consider: R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at para. 4; R. v. Plews, 2010 ONSC 5653, at para. 335.

Irecognize that the defence has alleged a motive to fabricate that is related to [the complainant's] fear of having become pregnant, an issueI will address later in these reasons. 23 Two paragraphs later, under the heading "The Alleged Motive to Fabricate", the trial judge wrote the following: It was submitted on behalf of Mr. Ignacio that [the complainant] had a motive to fabricate a sexual assault because she was afraid that shehad become pregnant as a result of Mr.

Ignacio ejaculating inside her and needed to explain any pregnancy to her parents in such a wayas to absolve herself of having any responsibility for the situation. It was also submitted that this fear of pregnancy explains why [thecomplainant] was so upset the following day. In my view, the problem with this theory is that [the complainant] had the wherewithal toobtain a "morning after" pill immediately after Mr. Ignacio ejaculated inside her. She took the pill and there is no suggestion that she hadany reason to think that it would not work. She had no real reason to believe that she was pregnant.

Even if she had such a fear, it isdifficult to understand why she would subject herself to a "rape kit" examination the following day. If she was worried about beingpregnant, surely undergoing a pregnancy test would have made far more sense. 24 The trial judge accepted the complainant's evidence and found beyond a reasonable doubt that the appellant sexually assaulted her.

… 30 In addressing this appeal, there are in essence two questions that require a response: (

i) Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crownasserts, simply an absence of evidence of any motive to fabricate? (ii) If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting toan absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant'scredibility? … (

b) Absence of evidence of motive to fabricate may be considered in credibility analysis 37 This does not end the matter, however. The question then becomes: was the trial judge entitled to treat the absence of evidence ofmotive to fabricate as a consideration in assessing the complainant's credibility? 38 Both R. v. Batte (2000), (ON CA), 49 O.R. (3d) 321 (Ont. C.A.) and L.L. say that the absence of evidence ofmotive may be considered as a factor in assessing credibility. … 52 Consistent with this

interpretation, in several cases following Bartholomew (see, for example, W.R. ; R. v. Mirzadegan, 2019 ONCA 864 (Ont. C.A.) ; and R. v. MacKenzie, 2020 ONCA 646 (Ont. C.A.)1), this court has confirmed that the trier of fact isentitled to consider the absence of evidence of motive to fabricate as one factor in assessing the complainant's credibility.

Asin Batte and L.L., the cases caution against placing an improper emphasis on the absence of evidence of motive to fabricate,finding a proven absence of motive when the evidence does not support such a finding, and placing an onus on the accused toprove the complainant had a motive to lie. But assuming these errors are not present, the trier is entitled to consider the absenceof evidence of motive to fabricate as one factor among many in assessing the complainant's credibility. … 56 Lastly, a case that bears some similarities to the case under appeal is this court's decision in R. v.

M. (O.), 2014 ONCA 503, 313C.C.C. (3d) 5 (Ont. C.A.). There this court dismissed an appeal where the trial judge explicitly found that the Crown had "proven anabsence of a motive" to fabricate the allegations (at para. 106), or put differently, no motive to fabricate.

Before this court, the appellantargued that "the trial judge erred by finding that the Crown had established the complainants' lack of a motive to fabricate": at para. 104.This court rejected that argument. 57 Cronk J.A., writing for the court, accepted the distinction between the absence of evidence of a demonstrated motive to fabricateand affirmative proof of no motive to fabricate: at para. 107. She held that there was "no basis to conclude that the trial judge confusedthe absence of evidence of a motive to fabricate with the absence of such a motive": at para. 108.

The trial judge considered and rejectedthe defence suggestion that each complainant had a motive to fabricate. He did not suggest that the complainants must be telling the truthbecause no motive to fabricate had been demonstrated. Instead, he considered the absence of an established motive to fabricate asonly one factor among many in assessing the complainant's credibility. This was not in error, as it was consistent with Batte . CronkJ.A. concluded that it was "open to the trial judge to find an absence of apparent motive by the complainants to fabricate": at para. 109.

58 In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider . 59 In this case, the trial judge's treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence.

Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant's credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider.

As in W.R. , the trial judge's comment about motive did not "drive the trial judge's credibility findings", nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth . 60 Credibility findings are the province of the trier of fact. In this case, the trial judge clearly had no reasonable doubt that the appellant was guilty of sexual assault. His treatment of motive to fabricate did not infect that conclusion.

In these circumstances, there is no need to rely on the curative proviso. [My bolding added] [ 65 ] A brief helpful comment is made by His Honour Provincial Court Judge Gorman in R v Eric Taylor , [2021] N.J. No. 33 : 45 Because Mr. Taylor has suggested that the officers provided false evidence against him, I must assess this proposition ( see R. v. Ignacio , 2021 ONCA 69 (Ont. C.A.), at paragraph 35 ). However, it is important to understand that Mr. Taylor does not have any onus to establish why the Crown's witnesses testified as they did or to establish that they falsely implicated him ( see R. v.

Bernier , 2021 ABCA 27 (Alta. C.A.) ). In addition, suggestions of purposely false evidence having been presented, should not be put forward by counsel without an evidentiary basis. … 49 The crucial points are the following: 1. the accused has no onus to establish why a Crown witness provided incriminating evidence; and 2. the absence of any apparent motive to have provided such evidence does not enhance the credibility of that witness. 50 In this case, there is no evidence that any of the Crown's witnesses had a motive to fabricate evidence against Mr.

Taylor and no evidence establishing the absence of such a motive. The Ontario Court of Appeal suggests in Ignacio that "the absence of evidence of motive may be considered as a factor in assessing credibility" (at paragraph 38). But this begs the question: how is it a factor? [13] [My bolding added] [ 66 ] Mr. Taylor suggested that Ms. Maclean had a motive to fabricate (see eg. para. 78 Decision). In light of that assertion then, let me then examine what the trial judge said (paras. 190-208): “I cannot dismiss outright that Ms. Maclean made up these allegations to get back at Mr. Taylor for breaking up with her.

This motive must be examined in light of all of the other evidence to determine whether a reasonable doubt has been raised. A motive to lie is not, in itself, evidence of a lie.… Ms. Maclean stayed in the relationship with Mr. Taylor because she ‘loved him’. This is plausible. It wasn’t until Mr. Taylor threatened to call the police that Ms. Maclean texted ‘I’m telling them everything you did to me.’. So, did Ms. Maclean then create all these alleged incidents and create the photos to go with them? …Ms.

Maclean testified after they broke up, she surrounded herself with friends and family and told them what happened. … It was a few days after this that she called police. This is also plausible. … This lack of disclosure to the police during their relationship by Ms. Maclean supports the inference that she was not using these allegations to further purpose, i.e. to keep Mr. Taylor in their relationship, to have things go her way (even in January 2019). Mr. Taylor testified he was interested in making things work. Even Mr. Taylor reconciled in January and used her address as late as January 31 on

his Recognizance – “he wanted to work things out”. … She offered a plausible explanation; she was in love with Mr. Taylor and wanted to make it work. … The issue of motive must be considered. Is Ms. Maclean lying about all these incidents because Mr. Taylor broke up with her and she doesn’t take rejection well? … Nothing in the evidence, however, permits a reasonable inference to be made that she was acting on such a motive .

The circumstances outlined in her disclosure and her testimony weigh against that.” [My bolding added] [ 67 ] The trial judge clearly understood that this factor could be used to undermine the credibility of Ms. Maclean. She makes no express reference to the factor as being able to bolster the credibility of Ms. Maclean – albeit these paragraphs are contained within the

section entitled “Factors Supporting Complainant’s Version”. [ 68 ] I conclude there is no sufficient basis for apprehending that the trial judge inappropriately added weight to Ms. Maclean’s credibility. 4-The trial judge did not err by confusing an assessment of credibility and reliability in relation to the evidence of Ms. Maclean [ 69 ] The jurisprudence recognizes that there is a difference between credibility and reliability, and that a failure to consider either of these factors may require a retrial of the matter.

Moreover, in proper cases the court can conclude that “what the trial judge did was make an implicit finding of reliability” if satisfied that “through [their] reasons, [they have] confirmed that [they] assessed both the credibility and reliability of the witness taking into account the areas of concerns which [they have] outlined. Having done so, it [will be open to them] to find that the complainant’s evidence should be accepted on the core issue of whether the events occurred as she described them.”: R v Perrone 2014 MBCA at paras. 25-27,39 and 48 (affirmed 2015 SCC 8 ). [ 70 ] Mr.

Taylor argues that because the trial judge in her decision did not expressly refer to “credibility” but did refer to “reliability”, therefore she “confused the concepts in her decision”. In his written brief he argues: “The trial judge clearly confused the concepts at paragraph 205 when she states: ‘After reviewing all of the evidence, I find her evidence to be reliable. None of the suggested ‘inconsistencies’ were sufficient in [sic] material to have it and impact on my view of her testimony…’.

The trial judge once again states at paragraph 224: ‘All of the circumstances surrounding her testimony and manner in which she related to the court gives me confidence it is reliable even with Mr. Taylor’s denial and explanation in consideration of all the evidence from all the witnesses…’. Once again Ms. Maclean’s ability to testify in a straightforward manner was not contested. The truthfulness of Ms.

Maclean’s evidence was.” [ 71 ] Firstly, in the absence of an express statement of error regarding this alleged mistake by the trial judge, I am to presume that the trial judge knows the law – and in this case specifically knows that there is a difference between credibility and reliability. [ 72 ] Secondly, in her decision: 1.

Under the heading, “The Law: Credibility of Witnesses”, she cited Judge Tufts (as he then was) reasons in R v Hawkes , 2017 NSPC 4 , wherein he states: “ Credibility has two different aspects: truthfulness or veracity on the one hand and accuracy – the ability to accurately observe and recall – on the other. The latter is often referred to as reliability and the former as credibility . A witness who is not credible can give reliable evidence whereas credibility is no proxy for reliability.” [14] 2. Under the heading, “Analysis” she stated: “Mr. Taylor’s evidence falls into two categories.

The first is his denial of the allegations or an explanation of accident… The second category of evidence is the evidence to undermine the credibility of the allegations made by Ms. Maclean.” (Paras.187-189); 3. In her concluding remarks, at paragraph 224, the trial judge states: All of the circumstances surrounding her testimony and the manner in which she related it to the court gives me confidence it is reliable even with Mr. Taylor’s denial and explanation and consideration of all evidence from all the witnesses. Ms. Maclean’s evidence displaces any reasonable doubt.

Based on the evidence, I find and accept Ms. Maclean’s testimony of the incidents and injuries received.

[ 73 ] Mr. Taylor also complains of the language used by the trial judge in paragraph 205: “After reviewing all the evidence I heard, I find her evidence to be reliable . None of the suggested ‘inconsistencies’ were sufficiently material to have an impact on my view of her testimony. But that is not the end of the issues. This is not a contest between two competing versions, Ms. Maclean versus Mr. Taylor. [ 74 ] Notably, her immediately preceding paragraph contains the following words: “Regarding Ms.

Maclean’s evidence, no conclusion as to its credibility, reliability, believability or acceptance can be made until all the evidence has been considered and tested against that evidence.” [ 75 ] While the trial judge’s wording on occasion, seen in isolation, might raise a concern, a fair reading of the entire decision makes it clear that she understood the difference between credibility and reliability, that she must consider both of them in relation to every witness, particularly in relation to Mr. Taylor and Ms.

Maclean, and that ultimately she had to be satisfied beyond a reasonable doubt of proof of the elements of each of the offences with which Mr. Taylor was charged. [ 76 ] The trial judge did not err as argued by Mr. Taylor. Conclusion [ 77 ] His appeal from conviction(

s) is dismissed. No costs were requested pursuant to s. 826 of the Criminal Code and none are ordered. Rosinski, J. [6] See also R v Cooke , 2020 NSCA 66 at paras. 37-40 ; even more recently see the court’s reasons upholding the trial judge’s decision wherein the appeal court stated: “The trial judge accepted the complainant’s evidence. He found the complainant’s evidence was ‘plausible and consistent’ and she was not ‘prone to exaggeration’.”: R v Ignacio , 2021 ONCA 69 at para. 21 .

Moreover, it is acceptable for a trial judge to compare the evidence of the accused to that of a non-victim witness in his assessment of the accused’s credibility: R v D.B . , 2012 ONCA 301 at paras. 29-31 .

Obviously, each case must be decided on its own peculiar facts. [8] The “evidence of the accused” reference is not only to the evidence when an accused testifies, but is more broadly to any evidence adduced by the Defence (including raised on cross-examination of Crown witnesses) which is inconsistent with the accused’s guilt: R v JMM , 2012 NSCA 70 per Saunders JA at para.74:“The question arises whether the approach urged in W.(D.) applies to cases where the accused does not take the stand in his own defence. In the present case the appellant did not testify.

However, he did call evidence which was in direct opposition to the complainant's account. The Ontario Court of Appeal recently dealt with this issue directly. In R. v. B.D. , 2011 ONCA 51 , Blair, J.A., writing for the Court, observed: ‘[114] What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep.

Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice . In that event, they must acquit.’ [9] I appreciate that reasonable doubt may also arise from the absence of evidence – in the case at Bar there was evidence in relation to each of the incidents, primarily coming from Ms. Maclean and the photographic evidence.

The trial judge found that Mr. Taylor agreed that “they were together 99% of the time. He also agreed there were issues of jealousy ‘by May/June… almost off the hop… there were a lot of women around who are physically fit… within weeks I was seeing red flags’”; and that he acknowledged the incidents, although he sought to explain them –eg. Mr. Taylor claimed that Ms.

Maclean physically assaulted him – the trial judge rejected his evidence that she swung at him and by him blocking the blow caused her arm to be broken (he refused to take her to the hospital) - there is no question that her arm was broken – she had claimed that he forcefully punched her in the left arm and that’s how her arm got broken; he admitted that he had caused Ms.

Maclean’s injury by the tossing of the window fan (the stitches over her eye) and he acknowledged the cut on her collarbone: “she chose to come towards me” [he said he struck her with a spoon by accident as she came towards him – as opposed to him throwing a butter knife at her]; he acknowledged punching a substantial hole in the wall of her residence when he says she refused to give him his keys so he could leave in his car.

In his testimony he did not once say that she injured him. [10] While it was not argued at trial or on appeal, and therefore strictly speaking, I need not concern myself with the issue of the assessment of the reliability and credibility of a witness’s testimony on one count being properly used in the assessment of the credibility and reliability of that witnesses evidence on any other or all counts charged ( see R v MRS , 2020 ONCA 667 at paras.64,68-69 and R v PEC , 2005 SCC 19 ) the trial judge’s decision leads me to conclude that she examined each count independently, and there is no reason to believe that cumulatively she would’ve drawn a prohibited inference that Mr.

Taylor was the kind of person who would commit the offences in question. [11] See, for example cases canvassing this issue: R v Laing , 2017 NSCA 69 and R v Cooke , 2020 NSCA 66 .

[12] It is important to take note of footnote number one in that decision, which reads: “Pacioccio JA’s comments in R v AS , 2020 ONCA 229 , and the court’s comments in R v SH , 2020 ONCA 34 , arguably could be interpreted as being to the contrary. However, the issue of motive to fabricate was not central to those appeals and the comments in both cases were obiter .” [14] Similarly, see the reasons in R v TA , 2020 ONCA 783 : “A finding that the complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt.

As noted by this Court in R v JW , 2014 ONCA 322 at para. 26 : ‘A reasonable doubt can survive a finding that the complainant is credible’”.