R. v. Horne, 2023 NSCA 64

Nova Scotia Court of Appeal Citation: R. v. Horne, 2023 NSCA 64 Date: 20230907 Docket: CAC 514981 Registry: Halifax Between: Devon Horne Appellant v. His Majesty the King Respondent Restriction on Publication: s. 486.4 of the Criminal Code Judge: The Honourable Justice Peter M. S. BrysonAppeal Heard: May 24, 2023, in Halifax, Nova ScotiaSubject: Sexual interference – Adequacy of reasons – Stereotypical reasoningStatutes Considered: ss. 151, 173(2), and 715.1 of the Criminal Code;Cases Considered: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. R.E.M., 2008 SCC 51; R. v.Sheppard, 2002 SCC 26; R. v.

Gagnon, 2006 SCC 17; R. v. G.F., 2021 SCC 20; R. v. Dinardo,2008 SCC 24; R. v. D.D.S., 2006 NSCA 34; Faryna v. Chorny, (BC CA), [1952]2 D.L.R. 354; R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30; R. v. W.D.M., 2022 SKCA 64; R. v. Braich, 2002 SCC 27; R. v.Galloway, 2004 SKCA 106; R. v. Stanton, 2021 NSCA 5; R. v. Kishayinew, 2019 SKCA 127,aff’d 2020 SCC 34; R. v. A.M., 2014 ONCA 769; R. v. Find, 2001 SCC 32; R. v. J.C., 2021 ONCA131; R. v. D.C., 2023 NSCA 20; R. v. Cooke, 2020 NSCA 66; R. v.

Al-Rawi, 2021 NSCA 86; R. v.W.J.M., 2018 NSCA 54; R. v A.R.D., 2017 ABCA 237, aff’d R. v. A.R.J.D., 2018 SCC 6; R. v.Paulos, 2018 ABCA 433; R. v. C.M.M., 2020 BCCA 56; R. v. Kodwat, 2017 YKCA 11; R. v.J.H.S., 2008 SCC 30; R. v. B.D., 2011 ONCA 51; R. v. J.M.M., 2012 NSCA 70; R. v. Savage,2023 ONCA 240; R. v. Deviller, 2005 NSCA 71;Summary: Devon Horne was charged with sexual interference involving a four-year-old child, L.M., as wellas exposure (ss. 151 and 173(2) of the Criminal Code). L.M. gave two videotaped statements topolice. The first denied any misconduct by the appellant.

The second described the offences.When testifying, L.M. affirmed her second statement. At trial, Mr. Horne argued the case “turnedon” the credibility and reliability of L.M. The judge accepted L.M.’s testimony and convicted Mr.Horne. He appealed alleging the judge provided inadequate reasons, used stereotypical reasoning,and failed to consider exculpatory evidence in according with R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742.Result: Appeal dismissed. The judge adequately explained his acceptance of L.M.’s second videostatement to police, affirmed by her in court, in preference to her earlier statement.

The judge’sreasoning was not stereotypical but grounded in the evidence. The alleged exculpatory evidencecame from L.M.’s evidence because Mr. Horne did not testify. The alleged exculpatory evidencewas not argued at trial and was equivocal and minimal. Although the credibility and reliability ofL.M. was central, the judge did not treat the trial simply as a credibility contest. He properlyapplied the burden or proof to all the evidence. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full courtjudgment consists of 88 paragraphs.

Nova Scotia Court of Appeal Citation: R. v. Horne, 2023 NSCA 64 Date: 20230907 Docket: CAC 514981

Registry: Halifax Between: Devon Horne Appellant v. His Majesty the King Respondent Restriction on Publication: s. 486.4 of the Criminal Code Judges: Bryson, Fichaud and Derrick JJ.A. Appeal Heard: May 24, 2023, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Bryson J.A.; Fichaud and Derrick JJ.A. concurring Counsel: Lee V. Seshagiri, for the appellant Jennifer MacLellan, K.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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 ] Devon Horne appeals his convictions for sexual touching and exposing his genitals to L.M. when she was four years old, contrary to ss. 151 and 173(2) of the Criminal Code . [ 2 ] Mr. Horne lived in a relationship with L.M.’s mother for about six months between July 2017 and March 2018 along with L.M. and L.M.’s younger sister. The charges relate to this period. [ 3 ] L.M. was the principal witness against Mr. Horne.

She gave two audio/video statements to police. The first was on July 26, 2018. The second was on August 28, 2019. This second statement was admitted into evidence under s. 715.1 of the Criminal Code which permits, under conditions not challenged here, the admission of a videorecording adopted by a complainant who is under the age of 18. The Crown also called L.M.’s mother to whom L.M. made a disclosure against Mr. Horne. Finally, the Crown called the Constable who took the August 28, 2019 statement from L.M. Mr. Horne did not testify.

[4] At trial, the defence argued the case turned on the credibility of L.M. Mr. Horne attacked the unreliability of the evidence ofL.M., based on contradictions and differences between her July 26, 2018 and August 28, 2019 statements to police. Mr. Horne insistedthe first statement denying any sexual touching or exposure should be preferred because it was closer in time to the events. Thatstatement should have given rise to a reasonable doubt. [5] In a relatively brief unreported decision, Provincial Court Judge William Digby found Mr. Horne guilty of single counts ofsexual touching and exposing himself to L.M.

Mr. Horne was acquitted of sexually touching L.M.’s younger sister. [6] The judge accepted L.M.’s affirmation that her second statement described the offences. He reasoned the statement was morereliable because the video of her first statement showed a frightened young girl who was “... doing everything she could to avoiddiscussing Mr. Horne ...”.

By contrast, the second statement revealed a more mature, composed and self-confident child describing whathappened to her. [7] The judge did not find the differences or inconsistencies to be “significant”, accepted L.M.’s testimony, and enteredconvictions accordingly. [8] Mr. Horne now appeals arguing that the judge erred in law by: 1. Failing to provide sufficient and/or proper reasons in support of his credibility findings; 2. Violating the rule against stereotypical inferences; 3. Failing to consider exculpatory evidence in favour of the defence in accordance with R. v.

W.(D.), (SCC),[1991] 1 S.C.R. 742. [9] With respect to the applicable legal standard of review, Mr. Horne’s appeal faces at least two challenges. First, many of thearguments now advanced on appeal were not made at trial. It is difficult to argue a judge should have given reasons for an issue notraised or an argument not made. Second, regarding the alleged exculpatory evidence, Mr. Horne did not testify and so consideration ofwhat he may have said is filtered through the evidence of L.M. [10] Despite the able argument of Mr. Seshagiri, the appeal should be dismissed for the reasons that follow.

Were the Reasons Inadequate? [11] This is a difficult ground of appeal to maintain, particularly in the context of credibility findings, as Mr. Horne candidlyconcedes in his factum: 35. On the first ground of appeal, the Appellant acknowledges that, in accordance with R. v. G.F., [2021 SCC 20 at paras. 76 and 81]a trial judge’s findings of credibility deserve “particular deference” and should be based on legal error rather than “parsing imperfect orsummary expression on the part of the trial judge.” See also: R. v. N.M. [2019 NSCA 4 at para. 17] [12] The Crown refers us to the oft-cited case of R. v.

R.E.M., 2008 SCC 51, at ¶35, for the standard to be applied by appeal courtswhen considering a claim of inadequate reasons: [35] In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in thecontext of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (seeSheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logicalconnection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving atthe verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looksto the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensivelist of the key principles. [13] Inadequate reasons may constitute an error of law if they frustrate appellate review (R. v. Sheppard, 2002 SCC 26, at ¶54; R. v.Gagnon, 2006 SCC 17, at ¶13; R. v. G.F., 2021 SCC 20).

Ambiguity in reasons does not constitute an error of law unless they render thereasons unintelligible (G.F., at ¶79). [14] The sufficiency of reasons is considered in the context of the record, the issues and the submissions of counsel at trial (R.E.M.,at ¶55). [15] Factual sufficiency of reasons is a “low bar” as the Supreme Court said in G.F.: [71] The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judgedecided and why: Sheppard, at para. 55. Factual sufficiency is ordinarily a very low bar, especially with the ability to review therecord.

Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from therecord may explain the factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither theaggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52.

[Emphasis added.] [16] In R. v. Dinardo, 2008 SCC 24, the Supreme Court elaborated on adequacy of reasons in the context of a credibilityassessment: [26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinationsof credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibilityfindings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit interventionon appeal.

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R.v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, theaccused is entitled to know “why the trial judge is left with no reasonable doubt”: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings offact are reasonably available.

Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts thedenial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] [...] [31] As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether thereasons respond to the case’s live issues. In this case, the complainant’s truthfulness was very much a live issue — the trial judgerecognized it as so during the voir dire to determine whether the complainant was competent to testify.

At trial, two of the witnessestestified that the complainant could be untruthful and manipulative. While it was open to the trial judge to conclude that he wasconvinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciledthe complainant’s inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations. [Emphasis added.] [17] In oral submissions, Mr. Horne approached the sufficiency of reasons ground of appeal by relying on this Court’s decision of R.v.

D.D.S., 2006 NSCA 34, and in particular the framework described in ¶77-78 of that decision which discusses the considerations that ajudge should take into account when assessing credibility. Despite Mr. Horne’s emphasis on D.D.S., it was not an adequacy of reasonscase. In D.D.S., the judge misapprehended crucial evidence and misapplied the law. But his reasons permitted appellate review (¶45). [18] In D.D.S., Justice Saunders, for the Court, quotes from the often cited case of Faryna v.

Chorny, (BC CA),[1952] 2 D.L.R. 354, at p. 357, concluding: The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can betested in the particular case. [19] Mr. Horne says Judge Digby’s reasons do not “meet the D.D.S. standard”. In particular he says: (

a) There were significant contradictions between the two videotaped statements which were not adequately resolved by thejudge; (

b) The contradictions between the statements were not resolved during in-court testimony which made matters worse; (

c) The judge should have looked at the factors described in D.D.S. to see how the evidence “stacked up”; (

d) The judge’s reasons do not show how he did a D.D.S. analysis; (

e) Examination of the record does not resolve the inadequacy of reasons problem. [20] Mr. Horne complains that the judge’s dismissal of the differences and inconsistencies between L.M.’s earlier and laterstatements are generic and ignore specific credibility concerns. He refers to these passages in the decision: [18] Having said that, however, it’s my view having watched the interviews that during the second interview on August 28, 2019,L.M. had obviously physically grown from the young girl that she was during her first interview, and it also struck me that she wasremarkably more mature.

I noted in my assessment of L.M., during the direct examination and cross-examination in Court, L.M. wasdoing her best to respond to the questions that were asked of her, which is a significant change from her reluctance to respond to certainquestions regarding Mr. Horne. [19] I do note that particularly with respect to cross-examination I found some of the questions asked of her difficult to follow and itwas obvious to me that L.M. also had difficulty following the questions – or responding to the questions as they were difficult for her tounderstand, or so it appears.

Having said that I do not find the differences or inconsistencies, numerous as they may be between the July26, 2018 and the subsequent August 28, 2019 interviews to be significant in assessing L.M.’s credibility. Insofar as she spoke of thematters I found her evidence to be credible, believable, and reliable.

“Generic” Credibility Concerns [21] Mr. Horne asks rhetorically why generic factors of age, maturity, responsiveness and difficulty with questions should prevailover specific credibility concerns. [22] Notwithstanding Mr. Horne’s specific concerns, none of the “generic” factors can be dismissed. They all are grounded in theevidence and help explain L.M.’s increasing confidence and growing clarity of expression. [23] At the time of the offences, L.M. was four years old. She was four when she gave her 2018 video statement to police andalmost six when she gave her second.

She was seven when she testified at trial. [24] The Supreme Court of Canada has counseled courts to be conscious of the youth and immaturity of child witnesses who processinformation differently than adults (R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v. B.(G.), (SCC),[1990] 2 S.C.R. 30, at p. 54). [25] In W.(R.), Justice McLachlin, as she then was, put it this way: The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong toapply adult tests for credibility to the evidence of children.

One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, liketime and place, may be missing from their recollection. [...] [26] In assessing L.M.’s credibility, the judge adverted to this perspective of children’s evidence: [15] There is, however, an admonition that with respect to child witnesses – and this comes up particularly in cases of sexual assault –that one has to be mindful of the youth and immaturity of the witnesses – the witness and the way they process information differentlyfrom an adult. “Specific” Credibility Concerns [27] Mr.

Horne points out that in L.M.’s first statement, she said that he made her sad but denied that he had done anything to her tomake her feel sad. Later, she denied that anyone had seen her vagina or seen her naked. She specifically denied that Mr. Horne had seenher naked. [28] By contrast, in L.M.’s second statement, she said that while playing doctor Mr. Horne touched her “bum” and “nonny” whichshe explained was her vagina. The touching occurred while she was naked. Later, in her second statement, L.M. said he showed “hisballs” to L.M. and her younger sister. [29] Mr.

Horne says the judge never resolved the clear contradictions between the first and second statements given by L.M. [30] Mr. Horne is quite right that there are clear contradictions between L.M.’s two statements principally on the questions of sexualtouching and exposure. L.M. acknowledged the contradiction in court: MR. SUTHERLAND: Okay. In the first statement, where you were trying to tell the truth, promised to tell the truth, you said Devonnever touched you in your private part. Do you remember saying that? A. Yes. Q. Okay.

In your second statement, the one we played in Court, you said Devon touched you in your private part. Do you rememberhearing that? A. Yes. Q. Both of those things can’t be true, do you see that? A. Yeah. Q. Which is true? A. Yeah. Q. What? A. Yes. Q. The yes is true. A. Yeah. Q. Which of the two statements does the yes refer to? The first statement?

A. No. Q. The second statement? A. Yes. [Emphasis added.] [ 31 ] The judge was aware of the differences in the two statements, but believed L.M. when she testified in court that the touching actually happened. [ 32 ] With respect to the contradiction between the first and second video statements, the judge inferred reluctance by L.M. to discuss what happened with Mr. Horne when she gave her first statement: [13] What struck me about the first interview was the youth and immaturity of L.M. at that time. When asked about Mr.

Horne it’s quite clear that the young girl snuggled up to her mother as if seeking security or reassurance or her comfort. It was obvious to me that L.M. was doing everything she could to avoid discussing Mr. Horne and anything he may or may not have done. In addition to seeking comfort or close proximity to her mother, she also at one point, if I recall correctly, was quite tightly gripping the doll that she had. [ 33 ] In his oral submissions, Mr. Horne protests that other inferences were available to the judge.

He also suggests that the differences between the first and second statements could be explained by her having discussions with other members of her family of what allegedly happened to her. [ 34 ] Mr. Horne alleges L.M.’s testimony could have been influenced by her family. [ 35 ] He adds that L.M.’s antipathy towards Mr. Horne apparent in the first statement could have other explanations. For example, L.M. said during her first statement that Mr. Horne struck her mother. Mr. Horne says it cannot be inferred from L.M.’s antipathy that Mr. Horne had assaulted her. These were not arguments made by Mr.

Horne in his trial submissions. But the possibility that L.M. had been influenced by others was addressed in questioning: MR. SUTHERLAND: Let me come at it a different way. I’ll address that in cross. Between the time of the first going down to the police station and the second time going down to the police station you and your mom talked about things, correct? A. Yes. Q. And your mom talked to you about how bad Devon was, correct? A. Yes. Q. And she told you that Devon had done something bad to her private parts, to her vagina, correct? A. Yes. Q. And that made you very, very bad – very mad at Devon, right? A.

Yeah. Q. And your mom encouraged you to make up a story about Devon doing something bad to your private parts, is that correct? A. Yes. Q. And by make up I mean — I want to make sure you understand the same thing — by make up I mean say something that is not true, something that didn’t happen. Is that your understanding of the word? A. Um… Q. To make up something? A. No. Q. What’s your understanding, when you said your mom encouraged you to make the story, what did you mean? A. I mean no. Q. I beg your pardon? A. I mean no. Q. No what? A. For making up the story. Q. Okay.

So did your mom tell you to tell a story that you knew didn’t happen? A. No.

[…] MR. SUTHERLAND: Did your mommy tell you to say Devon touched you in your private parts? A. No. Q. In your second statement, how many times did Devon touch you in either the vagina or the bum? A. One. Q. Beg your pardon? A. One time to both. Q. One. And was that one time to both on the same day? A. Yes. Q. And if I understand that correctly from what I heard in the testimony, that was in your room, correct? A. Yes. Q. And you were sleeping in the soft blanket? Yes. A. Yes. Q. And you were asleep at the time he touched you… A. Yes. Q. Correct? And you were dreaming. A.

Yes. [Emphasis added.] [ 36 ] L.M. was cross-examined on the discussion with her mother and the possibility that she influenced L.M. Defence counsel did not choose to argue the point in final submissions, but the judge heard the testimony and refrained from comment on evidence upon which the defence did not apparently rely. That is not insufficiency of reasons. [ 37 ] Mr. Horne then points out that the disclosure to her mother described by L.M. allegedly occurred while Mr. Horne was still living with the family, while her mother says the disclosure happened some months after Mr. Horne had moved out.

This inconsistency was never resolved. Nor was it argued at trial. Nevertheless, Mr. Horne says the discrepancy between L.M.’s account of the disclosure and her mother’s should have been addressed by the judge. [ 38 ] Mr. Horne refers us to the Saskatchewan Court of Appeal’s decision in R. v. W.D.M . , 2022 SKCA 64 , where a new trial was ordered owing to a failure of the trial judge to address serious discrepancies in the complainant’s evidence. [ 39 ] W.D.M. is readily distinguishable. It involved an adult complainant alleging an assault fifteen years earlier when she was six or seven.

She admitted to a passionate hatred for the accused. This animosity was central to W.M.’s defence but was ignored by the judge: [30] The first, and perhaps most important, issue the trial judge failed to address relates to the animus that the complainant stated that she felt towards W.M. As I have already noted, she testified that she had harboured significant ill will towards W.M. for reasons unrelated to the alleged assault. In this regard, the mother said that W.M. treated the complainant much more poorly than he treated the sister.

The complainant testified that she felt unloved and unwanted by W.M. and singled out by him because she was not his biological child. She described him as being physically abusive with her for this reason. She felt he picked on her more than the sister. When she was asked if all of this caused her to hate W.M., she answered, “With a passion”. She testified not only that she hated W.M., but that she thought about it every day. This was a central pillar of W.M.’s defence. He argued, with some force, that the complainant’s admitted animus towards him rendered her evidence suspect.

Yet, I can see nothing in the judgment that would constitute even an indirect comment on this evidence. [Emphasis added.] [ 40 ] No such ignored “centrality” appears in this case. [ 41 ] In this context, R.E.M. at ¶34 is apposite: Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. [Citing R. v. Walker , 2008 SCC 34 , at ¶20.] [ 42 ] To warrant intervention “there must be a functional failing in the reasons.

More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review” ( R.E.M. , at ¶53).

[ 43 ] The discrepancy between mother and daughter’s account of the disclosure was not a central issue at trial. It was not raised in final submissions. The defence did not cross-examine L.M. on any inconsistency regarding her disclosure to her mother. [ 44 ] Although counsel’s arguments may not exhaust a judge’s duty to engage with “live” issues, the inconsistencies regarding disclosure here do not relate to core issues of sexual touching or exposure.

They relate to how and when L.M. made her disclosure—not whether or how the offences occurred. [ 45 ] The conduct of the trial by defence counsel does not suggest that this discrepancy between mother and daughter’s accounts of disclosure was central to the defence’s theory of the case. It would be reasonable for the trial judge to consider any inconsistency as not significant. The discrepancy was collateral. Omitting mention of secondary or collateral circumstances does not offend the requirements of adequate reasons ( R. v. Braich , 2002 SCC 27 , at ¶25).

Typically, those requirements would not extend to evidence tangential to the charges and not argued by counsel. There is no obligation to resolve every inconsistency in the evidence, however peripheral ( R. v. Galloway , 2004 SKCA 106 , at ¶31-32; R. v. Stanton , 2021 NSCA 5 , at ¶67, citing R. v. Kishayinew , 2019 SKCA 127 , at ¶76, aff’d 2020 SCC 34 ; R. v. A.M. , 2014 ONCA 769 , at ¶14). [ 46 ] As the Crown argues, the reasons were sufficient because the judge accepted L.M.’s testimony.

In cross-examination concerning the discrepancies between the two statements L.M. affirmed that her second statement was true; that she was only touched once on the bottom and on her vagina; and that it was on the same day in her room. She denied her mother told her to say Mr. Horne had touched her in her “private parts”. The judge was entitled to accept this evidence which dispenses with the contradictions raised by Mr. Horne. Although he did not address the discrepancy between L.M. and her mother about when L.M. reported Mr.

Horne’s behaviour, as previously noted, that was not an issue addressed by counsel in final argument. Moreover, having accepted L.M.’s testimony, it must follow that he preferred it to her mother’s. L.M. adopted her second statement to police and it was decided she was being truthful in doing so.

He noted the impact of actually watching the video as opposed to reading the statements: [12] I have to say that seeing the visual portion of the first interview left me with a different impression from what I had from listening to the excerpts from the transcript which had been first put to L.M. before resort was made to the playing of the complete visual and audio first interview. [13] What struck me about the first interview was the youth and immaturity of L.M. at that time. When asked about Mr.

Horne it’s quite clear that the young girl snuggled up to her mother as if seeking security or reassurance it’s her comfort. It was obvious to me that L.M. was doing everything she could to avoid discussing Mr. Horne and anything he may or may not have done. In addition to seeking comfort or close proximity to her mother, she also at one point, if I recall correctly, was tight – quite – quite gripping the doll that she had. [ 47 ] The Crown properly submits that it is clear the judge considered all of the evidence because he did not convict on the count of touching L.M.’s bottom.

And he dismissed the second charge of Mr. Horne exposing himself to the younger child contrary to s. 173(2) of the Criminal Code because he was not satisfied that this was proven beyond a reasonable doubt. [ 48 ] The judge was entitled to accept L.M.’s adoption of her second statement at trial and infer that a fearful reticence explained her failure to describe Mr. Horne’s conduct during the first statement.

The judge was clear that he accepted L.M.’s evidence of sexual interference and exposure: [19] […] Insofar as she spoke of the matters I found her evidence to be credible, believable, and reliable. [20] The major complaint that would relate to L.M. is that she indicated that Mr. Horne, under the guise of playing doctor, inserted one of his fingers in L.M.’s vagina.

L.M. demonstrated that although she had her own terms for her body parts or the family had unique terms, that is her mother and she and her mother and her sister had unique terms for certain body parts, she was able to properly identify her vaginal area by reference to pictures, and at some points actually used the proper word. I accept her evidence with respect to that point. [21] With respect to the charge of exposure that comes out most clearly in the second video statement for which there’s a transcript and the written transcript begins on page 55, and ends at the bottom of the subsequent page.

She indicates that Mr. Horne, while she was asleep, came into the room and showed his testicles. It was a room where she and her sister slept. She pointed out the region of a male genitalia in the diagram which is entered as an exhibit. [ 49 ] The judge’s reasons were adequate because they are responsive to the live issues and allow for meaningful appellate review. Did the Judge use Stereotypical Reasoning? [ 50 ] Courts are permitted—indeed encouraged—to use “common sense” when assessing evidence and, in particular, credibility.

However, the application of common sense inferences usually must be grounded in the evidence of the particular case at hand. Common sense must not be burdened by stereotypical reasoning. As Justice McLachlin said in R. v. Find , 2001 SCC 32 : [103] These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed.

Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors. [ 51 ] More recently in R. v. J.C. , 2021 ONCA 131 , the court observed:

(1) The Rule Against Ungrounded Common-Sense Assumptions [58] The first such rule is that judges must avoid speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth , 2020 BCCA 240 , at para. 65 ; R. v. Cepic , 2019 ONCA 541 , 376 C.C.C. (3d) 286, at paras. 19-27 ; R. v. Perkins , 2007 ONCA 585 , 223 C.C.C. (3d) 289, at paras. 35-36 . For clarity, I

will call this ‘the rule against ungrounded common-sense assumptions’. [59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence . Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn. [60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence .

If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent.

The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking. [...]

(2) The Rule Against Stereotypical Inferences [63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour . I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility: Roth , at para. 129 ; R v. A.B.A. , 2019 ONCA 124 , 145 O.R. (3d) 634, at para. 5 ; Cepic , at para. 14 .

It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R. v. Quartey , 2018 ABCA 12 , 430 D.L.R. (4th) 381, at para. 21 , aff’d 2018 SCC 59 , [2018] 3 S.C.R. 687; and see Cepic , at para. 24 . [64] Two points are critical in understanding this rule and ensuring that it does not impede proper judicial reasoning. [65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience.

It only prohibits inferences that are based on stereotype or ‘prejudicial generalizations’: R. v. A.R.D. , 2017 ABCA 237 , 422 D.L.R. (4th) 471, at paras. 6-7 , aff’d 2018 SCC 6 , [2018] 1 S.C.R. 218. [...] [68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence . Professor Lisa Dufraimont makes this point admirably in ‘ Myth, Inference and Evidence in Sexual Assault Trials ’ (2019) 44:2 Queen’s L.

J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D., at paras. 6-8, 62 ; and Roth , at para. 73 . [69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth , at paras. 130-38 . For example, in R. v.

Kiss , 2018 ONCA 184 , at paras. 101-2 , evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention. [70] By the same token, it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence .

For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence: Quartey , at para. 21. Similarly, in R. v. F.B.P. , 2019 ONCA 157 , the trial judge was found not to have erred in finding it implausible that the complainant would consent to spontaneous sex on a balcony, potentially in full view of others, because that inference did not rest in stereotypes about the sexual behaviour of women.

The inference was based on evidence about the ongoing sexual disinterest the complainant had shown in the accused, and the ready availability of a private bedroom.

(3) The Effect of Reasoning Errors Related to the Plausibility of Human Behaviour [71] Does a reversible error occur whenever a trial judge violates the rule against unfounded common-sense assumptions, or the rule against stereotypical inferences? As a matter of principle, such errors are reversible only when they ‘ground’ the relevant inference by playing a material or important role in the impugned conclusion.

Put otherwise, it is not per se a reversible legal error to draw impermissible inferences that do not matter, but it is a reversible legal error to reach a material factual conclusion based on such reasoning. [Emphasis added.] J.C. has been favourably cited by this Court: R. v. D.C. , 2023 NSCA 20 , at ¶59; R. v. Cooke , 2020 NSCA 66 ; R. v. Al-Rawi , 2021 NSCA 86 . [ 52 ] The Crown reminds us of the admonition of this Court in R. v.

W.J.M. , 2018 NSCA 54 that the proscription against stereotypical thinking does not survive a compelling encounter with the evidence: [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 judge acquitted because his doubt relied exclusively on the expected behaviour of a victim of sexual assault.

That is, the trial judge expected the victim to avoid her abuser or exhibit a change in behaviour, and this ran contrary to the trial judge’s view that the evidence disclosed a 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 oraccused in the context of the case being heard. [...] [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. [Emphasis added.] Also see R. v A.R.D., 2017 ABCA 237, at ¶6-9, 28, 43-44 and 71, aff’d R. v.

A.R.J.D., 2018 SCC 6; R. v. Paulos, 2018 ABCA 433, at¶24, 26-29 and 39; R. v. C.M.M., 2020 BCCA 56, at ¶138-139; R. v. Kodwat, 2017 YKCA 11, at ¶27-28, and 41. Mr. Horne concedes the judge was conscious of the error of stereotypical reasoning (Decision, at ¶17).

Nevertheless, to reiterate, he saysthe judge made that error immediately after when he said: [18] Having said that, however, it’s my view having watched the interviews that during the second interview on August 28, 2019,L.M. had obviously physically grown from the young girl that she was during her first interview, and it also struck me that she wasremarkably more mature.

I noted in my assessment of L.M., during the direct examination and cross-examination in Court, L.M. wasdoing her best to respond to the questions that were asked of her, which is a significant change from her reluctance to respond to certainquestions regarding Mr. Horne. [53] As previously described, these were observations grounded in the evidence. The judge noted the evolution in L.M.’sconfidence and clarity from an earlier inhibition: [13] What struck me about the first interview was the youth and immaturity of L.M. at that time. When asked about Mr.

Horne it’squite clear that the young girl snuggled up to her mother as if seeking security or reassurance or her comfort. It was obvious to me thatL.M. was doing everything she could to avoid discussing Mr. Horne and anything he may or may not have done. In addition to seekingcomfort or close proximity to her mother, she also at one point, if I recall correctly, was quite tightly gripping the doll that she had. [54] L.M.’s reluctance to speak is not inconsistent with the behaviour of sexual assault victims as Judge Digby noted (Decision, at¶16). But he did not rely on that to infer the guilt of Mr.

Horne (Decision, at ¶17). As the Crown argues, L.M.’s reluctance to speak inher first statement cannot support an inference that she is not credible nor that Mr. Horne was guilty. There is no such error here. [55] The judge’s inferences in this case were grounded in the evidence. His decision to accept L.M.’s second statement was basedon his review of both videos and L.M.’s testimony (at ¶46, 53 and 54 above). His comments rely on the evidence. They do not appearout of context as stereotypical reasoning.

Did the trial judge err in failing to conduct a W.(D.) analysis? [56] The W.(D.) principle, first enunciated by Justice Cory in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, at p. 758,was developed to avoid judges reducing trials to credibility contests. Accordingly, the W.(D.) formula embeds any credibility analysis inthe broader obligation of ascertaining reasonable doubt. As Justice Cory put it: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [57] It is now widely acknowledged that W.(D.) is not a magic formula. At the end of the day, the question is whether the evidencegives rise to reasonable doubt (see for example: R. v. J.H.S., 2008 SCC 30). [58] At first blush, this ground of appeal seems misplaced because Mr. Horne neither testified nor led any evidence. However, in R.v.

B.D., 2011 ONCA 51, 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 caseswhere an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on avital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidencefavourable 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 onthat vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state ofreasonable doubt as to the accused’s guilt: Challice. In that event, they must acquit. [Emphasis added.] [59] B.D. has been endorsed by this Court in R. v. J.M.M., 2012 NSCA 70, although the accused did call evidence in J.M.M.

Theessence of B.D. and J.M.M. is the Crown’s obligation to prove its case beyond a reasonable doubt—and to require an acquittal if

conflicting evidence leaves the court in reasonable doubt regarding the accused’s guilt. [ 60 ] The Crown points out that J.M.M. dealt with a situation in which an accused, who did not testify, did call evidence. The Crown suggests that J.M.M. ’s acceptance of B.D. as a “proper statement of law on this point” is confined to the facts of B.D. and may not extend to a case like this where “primarily inculpatory evidence is contained in a complainant’s testimony [and] was not specifically addressed”. For purposes of this case, it is unnecessary to decide the point. [ 61 ] Mr.

Horne says the judge erred in commenting that W.(D.) had no application, quoting ¶9 of the decision: [9] In many criminal cases there is further direction given the principles set forth by the Supreme Court of Canada. In the 1991 decision of R. v. W.D. , which is probably one of the most oft quoted cases in criminal law which has really no direct application in this case given the absence of evidence from the accused, or on behalf of the accused. [Appellant’s emphasis.] [ 62 ] Mr. Horne adds the judge erred by confining his analysis to the credibility of L.M. without regard to other evidence. Mr.

Horne quotes the judge where, for example, in ¶2, he says: [2] The charges against Mr. Horne essentially stand or fall on the Court’s assessment of the credibility of L.M. [ 63 ] Mr. Horne maintains the judge failed to consider his utterances—reported through other evidence—to ask whether they raised a reasonable doubt alone or in conjunction with other evidence. [ 64 ] At trial, Mr.

Horne’s counsel described the judge’s task: This matter turns on two differing and contradicting statements supplied by the complainant [L.M.]. [ 65 ] Counsel went on to detail the perceived problems with the evidence of L.M. as set forth in her two statements and challenged the credibility and reliability of that evidence. So the trial judge’s statement of what the case turned on reflected Mr. Horne’s submissions. [ 66 ] Mr. Horne makes three references to the evidence in support of his claim that testimony favourable to him was not taken into account.

With respect to the sexual interference charge, he quotes this evidence from L.M.’s 2019 statement: A. We, I was, I was sleeping in the soft blanket, and Tessa, and then we, and we feeled it, and I said, “Devon, what are you doing?” And I said, and Devon said, “Nothing. I was only checking your [temperature] …” And then, and then, and then we was, and then I telled Mommy, and Mommy s…, and then Mommy said, “Can you please stop?” And Mommy s…, and Devon said no. And then Mommy said, to Devon, said, “Can you, can you please go in your bedroom and talk about it?” And, and Devon said yes . Q. Oh.

And then they went and talked about it ? A. Mm-hmm . [Appellant’s emphasis.] [ 67 ] From this, Mr. Horne says a denial and explanation on the part of the accused appears on the record which engaged W.(D.) . [ 68 ] The judge showed he was aware of Mr. Horne’s reported evidence that he was only “checking your temperature” when he touched L.M.’s vagina because he said: The major complaint that would relate to L.M. is that she indicated that Mr.

Horne, under the guise of playing doctor , inserted one of his fingers in L.M.’s vagina. [Emphasis added.] [ 69 ] Notwithstanding the pretence for the touching, the judge was satisfied that the interference had occurred: I accept her evidence with respect to that point. [ 70 ] The other two utterances relate to the exposure charge. [ 71 ] The judge was aware of the denial of exposure because he refers specifically to the relevant passages of the transcript in which the denial is contained.

He says: [21] With respect to the charge of exposure that comes out most clearly in the second video statement for which there’s a transcript and the written transcript begins on page 55, and ends at the bottom of the subsequent page. She indicates that Mr. Horne, while she was asleep, came into the room and showed his testicles. It was a room where she and her sister slept.

She pointed out the region of a male genitalia in the diagram which is entered as an exhibit. [ 72 ] The reported denial appears at page 55, line 16: I, I, I was awake, and I said, “Devon, can you please stop?” And he said, “No, I’m not, I’m not.” [ 73 ] This statement is ambiguous. It could mean Mr. Horne was not doing what was alleged or it could mean he was refusing to stop exposing himself.

[ 74 ] A clearer denial appears at the bottom of page 57. It recounts an exchange between L.M.’s mother: Mommy just yelled at him and said, “You don’t do that.” And he said, “S…, I’m sorry, I didn’t, I didn’t do it.” And, and then, and I, and I tell Mommy, I said, “He real did, Mom. He real did.” [ 75 ] Notably, neither L.M. nor her mother were cross-examined on this evidence. [ 76 ] The Crown responds to these alleged W.(D.) errors by referring to R. v.

Savage , 2023 ONCA 240 , where the Ontario Court of Appeal found that the trial judge’s limitation of the W.(D.) instruction to the appellant’s evidence alone was not fatal for four reasons: [38] Nevertheless, the trial judge’s error on this point is not fatal in this case. I reach that conclusion for a number of reasons. First, the exculpatory evidence, outside of the appellant’s evidence, was minimal and equivocal . Second, the trial judge properly instructed the jury on the burden of proof.

The fact that the trial judge correctly instructed on that issue is a strong indication that the jury was not left in doubt as to the burden resting on the Crown: W.(D.) , at p. 758. Third, immediately prior to the impugned W.(D.) instruction, the trial judge had instructed the jury to consider all of the evidence in determining whether the Crown had proven the offence beyond a reasonable doubt. Fourth, trial counsel did not raise any objection to the W.(D.) instruction. [Emphasis added.] [ 77 ] Analogizing to this case, the alleged exculpatory evidence here is minimal and, in part, equivocal.

There is no question that the judge was aware of the burden of proof as he cites it (Decision, at ¶7-8). The judge would also be well aware that he had to consider all of the evidence in determining whether the Crown had proven its case beyond a reasonable doubt. Finally, although there is no instruction in this case because there is no jury, the defence did not raise W.(D.) or suggest the judge should instruct himself on it, let alone in relation to the evidence it now relies upon. [ 78 ] While the judge accepted that Mr.

Horne exposed himself to L.M., he was careful about concluding guilt in the domestic circumstances of the household: [24] One has to be cautious in a situation like this where it’s a family unit and people often don’t exhibit the same standards of privacy when they move about the house. It would not be uncommon for one family member to appear naked in front of the other.

However, going into a child’s room while the child is sleeping and removing your underpants and displaying your genitalia and continuing to do so despite the child’s comments indicating her unease with the situation, this strikes me that there’s no innocent explanation for that activity and that it was for a sexual purpose. [ 79 ] Finally, Mr. Horne says that the judge failed to conduct a “long last careful look” at the evidence and raises several concerns. First, he repeats an argument he earlier made against the judge’s inferences.

He refers specifically to evidence that L.M. may have been influenced by her family because she said she wrote “a list at my nanny’s” and that L.M.’s mother had another unpleasant partner named “Gage” who L.M. said was “as bad” as Mr. Horne. Importantly, L.M. did not make allegations of sexual impropriety against Gage. [ 80 ] As earlier described, L.M. was cross-examined on her mother’s potential influence on her as a result of discussions about Mr. Horne. She maintained the events occurred and the judge believed her. [ 81 ] In cross-examination it was also put to L.M.’s mother that she felt animosity towards Mr.

Horne in part because he had been acquitted of sexual assault charges which she had brought against Mr. Horne. L.M.’s mother admitted the charges and acquittals but did not ascribe her anger to those. Rather, she was angry at Mr. Horne for what he did to L.M. She also denied talking about adult issues with L.M. She admitted having lied to the police about another matter that had nothing to do with her daughter. Motive and opportunity to influence L.M. were canvassed by counsel who chose not to highlight this argument in his closing submissions.

It is unsurprising that the judge would not comment on what had not been argued. [ 82 ] Mr. Horne adds the judge failed to address an inconsistency in her mother’s evidence concerning L.M.’s disclosure that Mr. Horne “pulled down her pants” whereas in her second statement L.M. said she was not clothed. Nor did the judge directly address L.M.’s inability to explain how her memory got better in her second statement when she conceded the general proposition memory gets worse over time. Mr.

Horne argues these omissions by the judge belonged to the third step in W.(D.) requiring an overall consideration of whether the charges had been proved beyond a reasonable doubt. [ 83 ] The first criticism complains of an apparent contradiction between mother and child that yet again was never argued and is resolved by the judge’s acceptance of L.M.’s second statement. The same can be said of Mr. Horne’s second complaint. The judge had already noticed the reluctance of a four-year-old child to cast aspersions against an adult during her first statement.

That reluctance receded with time during L.M.’s second statement when she was almost six. [ 84 ] The judge was aware of the burden of proof and applied it. As earlier described, he did not simply accept all of L.M.’s evidence at face value. He did not find that both counts of sexual touching had been established on the requisite standard. He found one instance of sexual touching, not two. Similarly, he acquitted Mr.

Horne on a second charge of sexual touching with respect to L.M.’s younger sister. [ 85 ] Many of the appellant’s arguments take on the appearance of an alleged misapprehension of crucial evidence on which D.D.S. partly turned. The examples relied upon do not meet the D.D.S. standard cited, because they are peripheral, not material or essential ( R. v. Deviller , 2005 NSCA 71 , at ¶10 and 11). [ 86 ] W.(D.) is aimed at preventing the burden of proof from degenerating into a credibility contest. That did not happen here. Conclusion [ 87 ] For the foregoing reasons, I would dismiss the appeal.

Bryson J.A. Concurred in: Fichaud J.A. Derrick J.A.