R. v. W.J.M., 2018 NSCA 54

Nova Scotia Court of Appeal Citation: R. v. W.J.M. , 2018 NSCA 54 Date: 20180621 Docket: CAC 463703 Registry: Halifax Between: W.J.M. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486.4 Criminal Code Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: April 19, 2018, in Halifax, Nova Scotia Subject: Criminal law: admission of a transcript of an accused’s statement

Summary: The Crown and defence agreed to introduce an edited transcript of the appellant’s exculpatory police statement. The appellant did not testify. The trial judge found the appellant’s version of events to be incredible and preposterous. The appellant’s evidence was not believed. It did not raise a reasonable doubt, and based on all of the evidence, the trial judge found the Crown had proven the charge beyond a reasonable doubt. Issues:

(1) Did the trial judge err in law to permit introduction of the transcript rather than the actual videotaped statement?

(2) Did the trial judge err in law in her credibility assessment based on the transcript and by reliance on stereotypical reasoning? Result: The appeal is dismissed. There was no obligation on the trial judge to second guess the agreement by the Crown and defence to tender the appellant’s edited transcript of his police statement. There was no suggestion that the transcript was inaccurate or that its use caused any trial fairness concerns. While use of the actual videotape may be best practice, the trial judge committed no legal error to permit admission of the transcript.

The trial judge was not precluded from conducting a credibility assessment based on the transcript of his police statement. Nor did the trial judge improperly use stereotypical assumptions in her rejection of his version of events. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 13 pages. Nova Scotia Court of Appeal Citation: R. v. W.J.M. , 2018 NSCA 54 Date: 20180621 Docket: CAC 463703 Registry: Halifax Between: W.J.M. Appellant v.

Her Majesty the Queen Respondent Restriction on Publication: s. 486.4 Criminal Code Judges: Beveridge, Bourgeois and Van den Eynden, JJ.A. Appeal Heard: April 19, 2018, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge, J.A.; Bourgeois and Van den Eynden, JJ.A. concurring Counsel: Luke Craggs, for the appellant Mark Scott, Q.C., for the respondent Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Reasons for judgment: INTRODUCTION [ 1 ] The Crown, with the agreement of defence counsel, introduced an edited transcript of the appellant’s police video-statement. The statement was exculpatory—that is, he denied he had improperly touched the complainant. [ 2 ] The trial judge, the Honourable Judge E. Ann Marie MacInnes, rejected the appellant’s version of events set out in his police statement; it, along with other evidence, did not raise a reasonable doubt.

The trial judge accepted the complainant’s description of improper sexual touching. Based on all of the evidence, she was satisfied beyond a reasonable doubt of the appellant’s guilt. [ 3 ] A conviction for sexual assault and touching the complainant for a sexual purpose ensued.

The latter charge was stayed pursuant to the rule that precludes multiple convictions based on the same wrong (the Kienapple principle). [ 4 ] The appellant’s Amended Notice of Appeal says the trial judge erred in law in two ways: she permitted the transcript to be introduced rather than the actual videotaped statement, and she made a credibility assessment of the appellant’s version based on the transcript.

As I will detail later, the appellant’s factum adds the argument that the trial judge erred in her credibility assessment by impermissible reliance on stereotypical reasoning. [ 5 ] With respect, I am not convinced that the trial judge erred in law and would dismiss the appeal. I will set out additional information about the trial process before explaining why I am untroubled by the way the trial unfolded and the trial judge’s credibility assessment. THE TRIAL PROCEEDINGS

[ 6 ] At the outset of the trial, the parties advised the trial judge that there would be a short Agreed Statement of Facts and one exhibit. The exhibit was the transcript of the appellant’s January 12, 2016 police video-statement. [ 7 ] Defence counsel (not counsel on appeal) confirmed that the statement was being admitted without the necessity of a voir dire; specifically, that the statement was voluntary and taken in compliance with the Canadian Charter of Rights and Freedoms .

Counsel alerted the judge to the fact that the statement contained gaps because potentially prejudicial parts had been excised. [ 8 ] The trial was short. There were just five witnesses: the complainant, E.W.; her mother, Ms. W.; the complainant’s cousin; and her grandmother. The defence called the appellant’s daughter. [ 9 ] The complainant told of her good relationship with the appellant, whom she viewed as her stepfather.

They would engage in horseplay with much mutual tickling and vigorous wrestling. [ 10 ] The complainant described a number of incidents in the summer and fall of 2015 that she felt were inappropriate. She testified that the appellant had touched her nipples and vagina under her clothes and on occasion ground his pelvis against her with his erection. She said he apologized to her if he had made her uncomfortable. [ 11 ] Eventually, the complainant disclosed the conduct to her mother, Ms. W. She confronted the appellant. Initially, he denied doing anything inappropriate.

He said he wished that E.W. had approached him so he could stop doing whatever she felt was improper. [ 12 ] Ms. W. testified she had quite a few discussions with the appellant about E.W.’s disclosure. She said the appellant theorized that E.W. was saying these things because she was upset with the rules he was trying to enforce, including who she was associating with. Later, the appellant told Ms. W. that he wanted E.W. charged for falsely accusing him and for having sexually assaulted him. [ 13 ] The appellant claimed that the complainant had been grabbing him, sometimes by the penis.

He would push her away and tell her to stop or he would tell Ms. W. This claim was advanced by the appellant within a month or two after E.W.’s complaint. Ms. W. insisted that the appellant had never before made any complaint about such behaviour by E.W. [ 14 ] There was no disagreement—the roughhousing between the complainant and the appellant was invariable. They would not desist despite urges to do so. Frequently, it was the complainant who initiated the activity, and the appellant had complained to Ms.

W. about E.W.’s rough treatment of him. [ 15 ] At the end of the Crown’s case, the defence called the appellant’s daughter. She contradicted the complainant on some details and described events that had not been put to the complainant. THE APPELLANT’S STATEMENT [ 16 ] Police frequently refer to information and pose questions in interviews with suspects that would probably not be allowed at trial. The police statement of January 12, 2016 was no exception. [ 17 ] Some of the objectionable or prejudicial information in the police statement had been deleted as a result of consultation between the Crown and defence.

I do not necessarily endorse the propriety of all that remained, but no objection was taken to its contents at trial or on appeal—just that the actual videotape should have been edited and tendered. [ 18 ] In his police statement, the appellant freely acknowledged roughhousing with the complainant. If his hands “went where they shouldn’t, he let go”. He claimed that the complainant had grabbed him inappropriately and when he told her she had to stop, she got angry at him.

The appellant also alleged that she became angry at him in the fall because he did not approve of the boys she was hanging out with. [ 19 ] The police asked the appellant “why the complainant was making something like this up”. He theorized she did it to get attention, because she was angry at him over discipline issues, and because he had repulsed her advances. The appellant denied ever being aroused and had never grabbed or touched her vaginal area. THE TRIAL JUDGE’S REASONS [ 20 ] The trial judge delivered oral reasons.

She properly said that all of the evidence must be weighed and considered in order to decide if the Crown had proven the appellant’s guilt beyond a reasonable doubt on one or both of the charges. [ 21 ] Because credibility was key, she would be guided by the direction of the Supreme Court of Canada in R. v.

W.(D.) [1] : if she either believed the evidence of the accused or was left in a reasonable doubt by it, she must acquit; even if not left in doubt by that evidence, she must still determine if she is convinced beyond a reasonable doubt of the guilt of the accused based on the evidence she accepts. [ 22 ] The trial judge commented that the case was somewhat unusual because although the appellant did not testify, his voluntary statement had been admitted by consent.

She added that she did not have the benefit of seeing or hearing the recording. [ 23 ] After setting out the substance of the appellant’s exculpatory statement, she emphatically rejected any credence in his version of events: His statement expressed his position that, over the course [of] a year, he was the recipient of unwanted sexual touching by his stepdaughter.

He expressed helplessness in the face of an almost constant onslaught by [E.W.], countless occasions of sexualized behaviours by [E.W.]towards him, grinding her genital area into him, grabbing his genitals, discussing sexual acts performed with boyfriends, trying to remove his towel, getting undressed in front of him. He opined that [E.W.] made the allegations because she was angry at him because he disapproved of her boyfriends because she is

spoiled, because she likes attention. He stated that he did not tell her mother because he feared it might get turned around on him, hemight get accused of something. I do not believe the evidence in [the appellant’s] statement. It is, frankly, incredible. It does not seem plausible or even possible thatsomeone could live with near constant harassment and not take steps to address it. Never does [the appellant] raise any concerns of thisnature with his wife until after the disclosure is made by [E.W.].

There is uncontradicted evidence before me that he raised numerousother concerns with [E.W.], about [E.W.], rather, with his wife - curfew, boyfriends, chores - but this oppressive and offensive conductof [E.W.] is never raised. This has no air of reality. It is preposterous. I do not believe it. [24] The trial judge thoroughly reviewed the evidence, including problematic areas of the complainant’s evidence.

At the end ofthe day, she was satisfied that the Crown had proven beyond a reasonable doubt the charges against the appellant. [25] The appellant takes no issue with the sufficiency of the trial judge’s reasons or that they are tainted by a misapprehension ofevidence. Nor is there a suggestion that the verdict is unreasonable or unsupported by the evidence. [26] The primary complaints are the admission of the transcript of the appellant’s statement and the trial judge’s determination ofcredibility absent hearing and seeing the recorded statement.

A residual or ancillary complaint suggests the trial judge improperly usedstereotypical reasoning. We can now turn to these issues. ADMISSION OF THE STATEMENT [27] The appellant emphasizes the judicial recognition of the value in videotaped statements over stark black and white text (R. v.K.G.B., (SCC), [1993] 1 S.C.R. 740; R. v. Oickle, 2000 SCC 38). He also highlights the dangers of relying ontranscripts that can be inaccurate (R. v. D.D.S., 2006 NSCA 34). [28] No one can seriously argue against the general superiority of a videotape over merely reading a transcript.

That is not to saythat there are not some advantages to a transcript. As observed by the Ontario Court of Appeal in R. v. Rowbotham: In any event, a transcript prepared by one who has carefully listened to the tape, stopped it and replayed it on frequent occasions shouldnot be lightly discarded. Members of the community are now thoroughly familiar with tape recordings. It is a common event to listen totapes, to play and replay songs and dialogue and even to transcribe those songs and dialogue.

From that general experience, it is nowcommon knowledge that someone who has listened to a tape, stopped it and replayed it on many occasions is better able to prepare atranscript than one who is hearing a tape for the first time. Repeated playing of a tape will familiarize a listener with the speech patterns,rhythms and intonations of the speaker. The result is that the patient, repetitive listener has so trained and equipped himself that he is in abetter position accurately to transcribe the conversation recorded on the tape.

To deprive the jury in all situations of the transcript and torequire them to listen repeatedly themselves to all the tapes at the conclusion of a lengthy trial would be to adopt an unrealistic approachand to impose unnecessary burdens on the jury. (1988), (ON CA), 41 C.C.C. (3d) 1 at pp. 48-49 [29] In addition, there is ease of use. Rather than having to listen to a lengthy recording, a transcript permits easy and fast access tothe relevant portions of a statement. [30] Despite these potential advantages, use of the actual videotape may well attract the label of best practice.

Transcripts maycontain small but critical errors (as in R. v. D.D.S., supra). Nor can they capture the nuances, including emotion and the interactionbetween the interviewer and subject, that may include indicia of oppression and non-verbal communication (R. v. Oickle, supra at para.46). [31] But here, the appellant concedes that the transcript is accurate. There is no suggestion that the appellant’s statement was notvoluntary or that trial counsel was incompetent to agree to the admission of the edited transcript as opposed to the actual videotape.

Nordid the appellant seek to demonstrate how the tape contained any different or better portrayal of his version of events. [32] There is no hint that the admission of the transcript caused any unfairness, let alone a miscarriage of justice. There is only thestark assertion that the trial judge committed a reviewable error of law by accepting the transcript without watching the actual video. The appellant’s submission is: 34. In Mr. M.’s trial Judge MacInnes did not properly exercise her role as the gatekeeper of evidence. She accepted the transcriptwithout question.

She did not insist that counsel tender the video statement. She did not even ask for a reason why counsel was tenderinga transcript of a statement rather than the actual video. The Appellant submits this was an error of law. [33] The appellant’s argument, in these circumstances, is untenable. It would require trial judges to embark on an independentinquiry into the admissibility of evidence to determine if the parties’ positions were sound.

There was absolutely nothing in the record toindicate the need for any such inquiry when the agreement was presented nor at any time throughout the balance of the trial. [34] The appellant did not cite any cases where a trial judge was faulted for admitting evidence in the face of agreement. Suchcomplaints will generally fail (see for example: R. v. S.G.T., 2010 SCC 20 at paras. 36-37; R. v. Verma, 2016 BCCA 220 at para. 38; R.v.

Soni, 2016 ABCA 231). [35] That said, there may be circumstances where appellate relief is appropriate if trial fairness is impacted by the improperadmission of evidence despite acquiescence or even agreement (R. v. Kuyan (1988), 28 O.A.C. 321). This case is not one of them. [36] I agree with the Crown’s submissions that there is no basis to second guess defence counsel’s agreement to rely on thetranscript, suitably edited to remove prejudicial material. The Crown points to the following factors in support:

(

i) counsel had received both the video and transcript as part of the Crown disclosure; (ii) counsel consulted with the Crown and agreed that the edited transcript was a satisfactory means by which to present theappellant’s oral statement to the Court; (iii) there were no complaints about the transcript’s accuracy; (iv) counsel commented to the trial judge that she had consulted with the appellant extensively before announcing his decisionnot to testify; the appellant therefore had full opportunity to say that the transcript did not give the proper picture; and (

v) the appellant’s unprompted and detailed transcribed statement was used to its fullest advantage by defence—a denial of anywrongdoing without exposure to cross-examination. [37] I see no legal error by the trial judge and would not give effect to this ground of appeal.

THE TRIAL JUDGE’S CREDIBILITY ASSESSMENT [38] The appellant advances two arguments under this ground of appeal: the trial judge was precluded from making a credibilityassessment on the bare words of the transcript; and the trial judge used stereotypical reasoning. [39] I am not persuaded by either of these arguments. [40] For much the same reasons outlined above, the trial judge did not err in law in doing exactly what defence counsel asked her todo—decide if she believed the appellant’s evidence or if it raised a reasonable doubt. [41] The appellant makes the bald assertion that trial judges cannot make findings of credibility from a transcript for the samereason this Court cannot make findings of credibility from a transcript.

He puts his argument as follows: 35. Flowing from the erroneous decision to admit the transcript came a further legal error of making a credibility assessment on the barewords of the transcript. As Judge MacInnes stated in her decision, she did not “have the benefit” of seeing or hearing the original video. This is an understatement. As the above submissions establish, judges need to watch the video recorded interview in order to assess itsevidentiary value. 36. Trial judges cannot make findings of credibility from a transcript for the same reason this court cannot make findings of credibilityfrom a transcript.

Great deference is given to the trier of fact who presided over the hearing in which the subsequently transcribed wordswere uttered. An accused who appeals on the basis of unreasonable verdict must overcome the strong presumption that the trier of factheard the evidence, understood the evidence and properly applied the law. [ . . . ] [42] The only authorities the appellant relies on for these propositions are well-established jurisprudence that mandate appellatecourts defer, absent legal error or an unreasonable verdict, to factual determinations made at trial (R. v. W.H., 2013 SCC 22; R. v.

Pyke,2013 NSCA 61). [43] There are many sound policy reasons why appellate courts apply a deferential standard of review to factual or mixed fact andlaw trial decisions (see Housen v. Nikolaisen, 2002 SCC 33, at paras. 10-20; reaffirmed in H.L. v. Canada (Attorney General), 2005 SCC25). [44] This approach applies to facts based on credibility findings, writ large, and to factual findings where there is no issue ofcredibility (see: Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353). In other words, deference is not tetheredsolely to the trial judge’s advantage of seeing and hearing the witness’s testimony.

As to the trial judge being disadvantaged from nothaving observed the appellant’s demeanor, I say three things. [45] First of all, courts have long recognized that reliance on demeanor must be approached with caution. It is not infallible andshould not be used as the sole determinant of credibility. This was succinctly summarized by Epstein J.A., writing for the Court in R. v.Hemsworth, 2016 ONCA 85: [44] This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor ofthe accuracy of a witness’s testimony: Law Society of Upper Canada v.

Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v.Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is oflimited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificialityof and pressures associated with a courtroom.” [45] Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, relianceon demeanour must be approached cautiously: see R. v.

S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significancein this case is the further principle that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of thereliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-14. [46] Secondly, if the appellant wanted his credibility assessed based on his demeanor, he could have asked for the videotapedstatement to be played or testified.

He did neither. [47] Thirdly, the appellant’s version of events that the trial judge rejected was also adduced through the viva voce evidence of Ms.W. There was no video or transcript, just her unchallenged description of what the appellant had told her. [48] The trial judge was required to consider the appellant’s evidence and determine if she believed it or if it raised a reasonabledoubt. She did just that. His explanations did not. Instead, the trial judge found that they were incredible and preposterous.

[49] The judge committed no legal error when she determined credibility of the appellant’s evidence based on the content of hispolice statement in the context of the trial evidence. [50] The appellant says the trial judge engaged in impermissible stereotypical reasoning to reject his evidence. He relies on therecent decision of the Supreme Court of Canada in R. v. A.R.J.D., 2018 SCC 6 where the Court substantially accepted the majorityreasons of the Alberta Court of Appeal. [51] The appellant’s argument is set out in his factum as follows: 43.

Any judgment, in a courtroom or otherwise, that operates on the premise that “A person who is telling the truth would not do that…”must be scrutinized carefully. The Supreme Court of Canada recently upheld the majority decision of the Alberta Court of Appeal in R.v. A.R.J.D., 2018 SCC 6. The trial judge acquitted the accused because of evidence which suggested the complainant’s behavior seemednormal during the period of abuse and, in particular, that she did not take steps to avoid him. The Alberta Court of Appeal rejected thislogic and stated the following: 69 In

summary, the trial judge's acquittals were directly tied to a legal error of applying an impermissible stereotype or myth thatavoidant behaviour was "expected", and concluding the absence of such behaviour negatively impacted the complainant's credibility.

Asstated, it was the trial judge's assessment that a victim would avoid her perpetrator or otherwise exhibit a change of behaviour; he thusengaged in a prohibited, stereotypical-based assessment of credibility that cannot stand. 70 The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essencenothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief.

The problem withsuch a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, oreven to a statistically meaningful degree, display any predictable behaviours following the abuse. Indeed, the converse may well be true:that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure. 71 An accused's constitutionally-protected right to make full answer and defence does not permit reliance on prejudicial generalizationsabout sexual assault victims.

Reasonable doubt is not a shield against appellate review if that doubt is informed by inferences based onexternal, personal assumptions or expectations about how sexual assault victims behave either generally, or specifically. Appellate courtsmust carefully scrutinize reasons to ensure that findings said to be based on "common sense or logic" are reliably just that, and are not, infact, unfair and inaccurate external viewpoints that find no foundation in the record. [emphasis added] 44. These comments must be considered against the presumption of innocence and the Crown’s burden of proof.

It is inconceivable thatthe Supreme Court of Canada would prohibit a reasonable doubt from being raised solely on the basis of a complainant not behaving acertain way, but permit the rejection of an accused’s exculpatory statement simply because he did not behave in a certain way. 45. Everything the Alberta Court of Appeal and the Supreme Court of Canada said about expected behavior of sexual assault victimsalso applies to persons accused of sexual assault. All people – not just victims of sexual predators – respond differently to awkward orembarrassing situations of a sexual nature.

An assessment of credibility anchored in assumptions about how people should behave in agiven scenario is an assessment of credibility anchored in an error of law. 46. Judge MacInnis’ rejection of Mr. M’s statement is the result of the application of an assumption that he would have told E’s motherabout her sexualized behavior if it was actually happening. The fact that he did not tell her mother about this behavior negativelyimpacted his credibility.

This was an error of law. [52] With respect, the appellant’s argument has a certain degree of superficial attraction, but on closer examination lacks merit. [53] In A.R.J.D., majority reasons by Paperney and Schutz JJ.A. of the Alberta Court of Appeal concluded that the trial judgeacquitted because his doubt relied exclusively on the expected behaviour of a victim of sexual assault.

That is, the trial judge expectedthe victim to avoid her abuser or exhibit a change in behaviour, and this ran contrary to the trial judge’s view that the evidence discloseda normal father-daughter relationship. [54] The majority reasons found that the claimed significance for absence of avoidance was an impermissible generalizationbecause sexual assault victims behave differently; particularly where the victim is a child living in the abuser’s house.

The SupremeCourt of Canada dismissed the as of right appeal for substantially the reasons of the majority—that is, the trial judge assessed thecomplainant’s credibility based solely on the discordance between her behaviour and the expected behaviour of the stereotypical victimof sexual assault. [55] I do not read those reasons as suggesting it is an error to rely on the actual conduct of an adult complainant, witness or accusedin the context of the case being heard. [56] There may well be recognized problems and limits associated with the evidentiary value of conduct to assess credibility and tomake findings of fact.

Nonetheless, after the fact conduct evidence is admitted and used to support inferences of guilt (R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v. White, 2011 SCC 13), innocence (R. v. B.(S.C) (1997), (ON CA), 104O.A.C. 81), or otherwise assess an accused’s claim of self-defence or lack of intent (R. v. Rodgerson, 2015 SCC 38). [57] The law has long banned any mandatory adverse presumption about when a complaint of sexual assault should have beenmade, and no inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim issupposed to react to the assault (see: R. v.

A.D.G., 2015 ABCA 149 at paras. 31-33). [58] However, the Crown regularly leads evidence about how a complainant behaved before and after the alleged abuse and howand in what 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), (BCCA), 93 C.C.C. (3d) 456 (B.C.C.A.) at paras. 38-40; R. v. Henrich, (ON CA), [1996] O.J. No. 2537 (C.A.) at para.14; R. v. Laing, 2017 NSCA 69 at para. 80). [59] In this case, the trial judge’s assessment of the appellant’s evidence was based not on stereotypical generalizations about howthe appellant should have behaved, but how he did behave. [60] The trial judge noted the appellant’s claim that he had been the recipient of unwanted sexual touching from his stepdaughter.

He was essentially helpless against her sexualized behaviour towards him—grinding her genital area into him, grabbing his genitals,discussing sexual acts performed with boyfriends, trying to remove his towel, getting undressed in front of him. [61] This claim was never made to Ms. W. until a month or two following the complainant’s disclosure of the appellant’s abusiveconduct. The appellant’s claim was made after he had already denied there had been any improper behaviour.

Importantly, there wasuncontradicted evidence that the appellant had raised numerous other concerns about the complainant’s behaviour in the monthspreceding. [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. [63] I would therefore dismiss the appeal. Beveridge, J.A. Concurred in: Bourgeois, J.A. Van den Eynden, J.A.