R v M.G.S., 2021 SKCA 1

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3140 Citation: R v M.G.S. , 2021 SKCA 1 Date: 2021-01-04 Between: M.G.S. Appellant And Her Majesty the Queen Respondent Before: Jackson, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Tholl On appeal from: CRM 285 of 2017, Saskatoon Appeal heard: September 16, 2020 Counsel: Brian Pfefferle for the Appellant Erin Bartsch for the Respondent Leurer J.A. I. Introduction [ 1 ] M.G.S. [Mr. S.] appeals his conviction for sexual offences relating to two young girls: R v M.G.S. (15 June 2018) Saskatoon, CRM 285 of 2017 (Sask QB). No appeal is taken from his sentence. [ 2 ] Mr. S.’s arguments are all rooted, one way or the other, in the brevity of the trial judge’s reasons for judgment. In my respectful view, none of his arguments have merit. I would therefore dismiss his appeal.

My reasons follow. II. Background A. Events leading to the charges [ 3 ] In 2017, Mr. S. was living in a common law relationship with K.D.P. [Ms. D.P.]. Ms. D.P. has two daughters from a previous relationship. At the time the relevant events took place, the older child was 14 years old and the younger child was 10 years old. [ 4 ] On the morning of February 15, 2017, Ms. D.P. left home with the older child, expecting that Mr. S. would soon depart for work and the younger child would walk to school. At approximately 9:00 a.m., Ms.

D.P. received a call from the younger child’s school, advising that her daughter had not arrived. Ms. D.P. immediately phoned home and spoke to Mr. S. Although Ms. D.P. and Mr. S. disagreed on certain details relating to this conversation, they both testified that Ms. D.P. inquired as to the younger child’s well-being and that Mr. S. advised Ms. D.P. that the younger child was not feeling well and had stayed home. [ 5 ] At approximately 10:00 a.m., Ms. D.P. received a message from the younger child through a mobile phone app the family used, indicating that Mr. S. had touched her inappropriately.

At around the same time, the younger child messaged her father, G.P. [Mr. P.] asking him to come to her. [ 6 ] Witnesses provided conflicting details as to what next transpired. However, it is not contentious that, immediately after receiving the message from the younger child, Ms. D.P. set out for home and called 911. Ms. D.P. soon arrived at the house where she found the door open and no one home. She set off on foot to find the younger child. She saw Mr. S. driving around the neighbourhood in his vehicle also looking for the younger child.

A short time later, she met up with a police officer and together they found the younger child walking on a nearby street. [ 7 ] The younger child was taken immediately to the police station where she gave a video-recorded statement. The statement was admitted into evidence at the trial as part of her testimony. [ 8 ] The two children stayed with their father, Mr. P., that evening. While there, the older child learned for the first time of the allegation that Mr. S. had sexually assaulted her younger sister. The older child advised her father that she also had been the victim of abuse by Mr. S.

The next day, February 16, 2017, the older child gave a video statement to the police. This video statement was also admitted into evidence as part of her testimony.

B. The charges [ 9 ] Mr. S. was charged with five offences. The indictment alleged that: (

a) on February 15, 2017, Mr. S. committed a sexual assault on the younger child contrary to s. 271 of the Criminal Code ; (

b) on February 15, 2017, Mr. S. touched the younger child for a sexual purpose, contrary to s. 151 of the Criminal Code ; (

c) between November 7, 2012, and August 31, 2015, Mr. S. committed a sexual assault on the older child contrary to s. 271 of the Criminal Code ; (

d) between November 7, 2012, and August 31, 2015, Mr. S. touched the older child for a sexual purpose, contrary to s. 151 of the Criminal Code ; and (

e) between November 7, 2012, and August 31, 2015, Mr. S. obtained for consideration the sexual services of a person under 18 years of age, contrary to s. 286.1(2) of the Criminal Code . C. The trial [ 10 ] The trial occurred over the course of a week. Monday to Thursday morning was occupied with evidence. Closing submissions were made on Thursday afternoon. [ 11 ] Both girls testified for the Crown, as did Ms. D.P., Mr. P. and the police officers involved in the investigation.

In broad terms, the evidence of the younger child was that she had stayed home from school on February 15, 2017, because she was not feeling well. She described how Mr. S. had left the home after Ms. D.P. but had returned a short while later. She was in her own bed when Mr. S. invited her to nap with him in the bedroom he shared with Ms. D.P. Once the younger child was in the bed with him, Mr. S. asked her if she wanted a massage. This led to Mr. S. rubbing her back, legs and vagina, during which time Mr. S. pulled the younger child on top of his chest. At Mr.

S.’s invitation, the younger child changed out of the “onesie” she was wearing into a tank top and shorts. Eventually, Mr. S. brought out a “weird stick that like vibrates” that looked like a “boy[’s] private” part. Mr. S. asked the younger child if she wanted to touch it. The younger child ran out of the room and texted her mother to come and help. The younger child then ran out of the house. Mr. S. followed her in his vehicle and tried to convince her to come back to the house. As part of her attempt to avoid Mr. S., the younger child ran to a stranger’s house and rang the doorbell. Eventually, Mr.

S. stopped following the younger child. Ms. D.P. and a police officer arrived shortly thereafter. The younger child was then taken to the police station where she gave her video statement. [ 12 ] The older child testified that she went to her boyfriend’s house after school on February 15, 2017, and then was dropped off at her father’s house in the early evening. Her father took her to the living room and told her that “something has happened” to the younger child but “didn’t explain too much”. The older child said, however, that she “had an idea”. The older child broke down and started crying.

Her father asked if “it” had happened to her. She told him that she had been abused but “didn’t tell him much”. Her father assured her that “everything was going to be okay, and that we were going to get help for it”. The next day, the older child was taken to the police station where she gave her video statement. In the statement, the older child said she was the victim of repeated sexual assaults by Mr. S. beginning when she was 10 years old and ending when she was 13 years old. The assaults included instances of penile penetration, the use of a vibrator and directing the older child to masturbate Mr.

S.’s erect penis. Mr. S. would encourage the older child’s cooperation in the assaults by offering, or threatening to withhold, access to the home wireless internet. The older child explained that she had not disclosed the abuse because Mr. S. had told her not to, because she was afraid that she would get into trouble, and because she thought no one would believe her. [ 13 ] Ms. D.P., the younger child and the older child all testified that Mr.

S. was proficient in the use of IT equipment, including managing the home internet, and would regulate the girls’ access to the wireless network as a form of reward and punishment for their behaviour. The older child testified that Mr. S. did this in order to procure her agreement to submit to the sexual assaults. [ 14 ] Mr. S. testified in his own defence. He recounted how he had returned home that morning after he had completed his only work assignment for the day. He said he was tired from the previous evening and decided to nap. As he was lying down, the younger child crawled into his bed to “snuggle”.

He said that it was not unusual for him to snuggle or hug the younger child. At first the younger child “had her head on [his] shoulder”. After “talking for a bit, then she was laying – laying on top of [him]”. The younger child “kind of straddled [his] chest type of thing”. Mr. S. “hugged her”. They were in that position for approximately five minutes when he told the younger child to get dressed for the day. The younger child left for several minutes and returned to again lie on top of him. Mr. S. then turned and a vibrator that he and Ms. D.P. had used the previous evening rolled out from under a pillow.

This caused the younger child’s demeanour to change to one of “shock” and she left the bed. Mr. S. acknowledged that he touched the bottom of the younger child’s legs and her hips but he denied that this, or any other touching of the younger child ever, was for a sexual purpose. [ 15 ] Mr. S. said that he expected that the younger child, having left his bed, would go off to school. He went to the backyard for a cigarette. While outside, he saw a bird he thought would be of interest to the younger child. Mr. S. went inside and found the front door to be open, but the younger child not in the house. Mr.

S. was “concerned that she [had] started walking to school” and he should “give her a ride”. He set out looking for the younger child in his vehicle and found her on a nearby street. He described several conversations with the younger child while he remained in his vehicle and she was on the street. He saw the younger child, at one point, ring the doorbell of a stranger’s house. Eventually, Mr. S. saw a police car pull up. He told the younger child to stay where she was; he would go back to the house and someone would pick her up. He drove back to the house where he found Ms.

D.P. and directed her to where she could find the younger child. [ 16 ] Mr. S. denied that he ever touched the older child for a sexual purpose, inserted any objects into her vagina, had sexual intercourse with her or bartered wireless access for sexual favours of any type. Mr. S. also denied that he would have had opportunities to have perpetrated the many sexual assaults the older child described.

[17] Mr. S. agreed that he managed the home internet and that the girls’ access to it was regulated as a form of reward andpunishment. He denied doing this to procure sexual services from the older child. D. The trial decision [18] Mr. S.’s testimony concluded on the Thursday morning of the trial. The defence called no other evidence.

The trial judgedelivered his oral decision the next day, Friday, at 2:00 p.m. [19] After instructing himself on the “catechism” of R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], the trial judgeidentified the “crux” of the Crown’s case to be the police interviews of the children and the evidence each gave at the trial. He gave a briefoverview of the events leading to the charges and the evidence. He characterized the defence as having created “fog around the details inthe children’s respective narratives” but found the children’s evidence to be truthful and reliable. He rejected Mr.

S.’s denial of criminalmisconduct and found that the “presumption of innocence has been displaced”. [20] For the purposes of sentencing, the trial judge stayed the two convictions for sexual assault, applying the principle set out in Rv Kienapple, (SCC), [1975] 1 SCR 729, and sentenced Mr.

S. to 18 months for the touching for a sexual purpose of theyounger child, 6 years consecutive for the sexual touching of the older child and 2 years concurrent for obtaining the sexual services of theolder child for consideration, all of which was then adjusted to a global sentence of 6 years of incarceration based on the totality principle. III. Issues [21] I agree with Mr. S. that his appeal is appropriately determined by the answer to the four questions identified in his factum. Iwould restate the questions slightly and answer them in the following order: (

a) Did the trial judge incorrectly apply the criminal burden of proof? (

b) Did the trial judge unevenly scrutinize the evidence? (

c) Were the trial judge’s reasons inadequate? (

d) Did the trial judge err by failing to address prejudice suffered by Mr. S. as a result of late disclosure? IV. Analysis A. Did the trial judge incorrectly apply the criminal burden of proof? [22] Mr. S. argues that the trial judge removed the Crown’s obligation to establish guilt beyond a reasonable doubt by, in substance,turning the trial into a credibility contest between himself and the complainants. This submission is largely grounded in the emphasizedwords found in the following passage in the trial judge’s reasons: [Mr.

S.’s] evidence was presented articulately; however, the weight of his denial is overwhelmed by the harsh truth of the evidence of [theyounger child] and [the older child]. The presumption of innocence has been displaced. The Crown has proven all of the elements ofcounts 1 to 4. (Emphasis added) [23] In advancing his argument on this point, Mr. S. builds from the consistent warning given by the Supreme Court that findings ofguilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (W.(D.) at 757).

As explainedin W.(D.), putting the question of guilt as an either/or proposition “excludes the third alternative; namely, that the [trier of fact], withoutbelieving the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonabledoubt as to his guilt” (at 757). This, of course, is the reasoning behind the well-known direction from W.(D.) that, when an accused hastestified, a trier of fact is well-advised to proceed as follows (at 758): 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. These suggested steps “are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt” (R v C.L.Y., 2008SCC 2 at para 6, [2008] 1 SCR 5 [C.L.Y.]). [24] The focus of Mr.

S.’s argument is on the single passage from the trial judge’s reasons that I have reproduced in paragraph 22 ofthese reasons. The submission is that the trial judge “obviously prefer[red] the evidence of the Crown” and this is “the only reason hereject[ed] the evidence of [Mr. S.]”. Thus, Mr. S. states by way of conclusion, the “trial judge reverse[d] the burden when he assesse[d]the accused’s evidence in light of Crown evidence”.

[25] Mr. S. argues by analogy to several cases, including C.L.Y., wherein a trial judge departed from the steps of W.(D.) and did notfirst consider whether she believed the accused before a conviction was entered. The trial judge in that case had said she would first assessthe credibility of the complainant as that was the “cornerstone of the Crown’s case” (at para 24). The Supreme Court ordered a new trialin that case. Mr.

S. submits that the following passage from the minority judgment of Fish J. in C.L.Y. provides reasoning that isapplicable to his appeal: [25] It seems to me, on the contrary, that this is precisely the kind of case where a departure from W. (D.) is fraught with particulardanger. The very purpose of adhering to the procedure set out in W. (D.) is to foreclose an inadvertent shifting of the burden of proofwhere the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses. [26] That was the case here.

And the risk of an inadvertent shift in the burden of proof materialized, as the reasons of the trial judgemake plain. The trial judge accepted the evidence of the complainant without taking into account at all the contrary evidence of theappellant. Before even considering the appellant’s evidence, the trial judge had concluded not only that the complainant’s evidence was“credible”, but that it was in fact true: “I believe the complainant”, she stated (at para. 6). (Emphasis in original) [26] Mr.

S. further equates the trial judge’s reasoning to that which occurred in R v Liberatore, 2010 NSCA 82, 262 CCC (3d) 559[Liberatore]. In that case, a trial judge was found to have erred by convicting an accused simply because he preferred the evidence ofCrown witnesses to that of an accused.

Justice Hamilton explained as follows: [12] W.(D.) prohibits rejecting the appellant’s evidence solely because it is inconsistent with the Crown’s evidence, which he prefers,and making a finding of guilt without further consideration of reasonable doubt in light of the whole of the evidence – thus treating thestandard of proof as a simple credibility contest. Regrettably, that is exactly what the judge did in this case.

As earlier set out in paragraph7 above, he reasoned: So, the key point in this case is whether or not I’m satisfied beyond a reasonable doubt of the accuracy of the police observation when Icompare it to Mr. Studley and Mr. Liberatore’s description of the transaction. ... [27] Mr. S. cannot claim that the trial judge was not aware of the underlying principle he is alleged to have misapplied. This is anappeal from a trial judge sitting without a jury. The trial judge is “presumed to know a principle as elementary as the presumption ofinnocence” (C.L.Y. at para 10).

More centrally, before beginning to analyze the evidence, the trial judge instructed himself in relation tothe applicable burden of proof by stating as follows: In a criminal trial, the accused does not have to testify. Mr. [S.] did on his own behalf. Anytime an accused testifies, it is necessary andworthwhile to revisit the admonitions of R. v. W.(D.), (SCC), [1991] 1 SCR 742. I have reflected on W.(D.), and I havealso reminded myself that the proof -- that the burden of proof upon the Crown is a high one. It is proof beyond a reasonable doubt of eachelement of each count.

I think is [sic] worthwhile to recite the catechism of W.(D.), namely (1) if I believe the evidence of the accused, then obviously I mustacquit.

(2) If I do not believe the evidence of the accused, but I am left in reasonable doubt by it, I must acquit.

(3) Even if the evidence ofthe accused raises no doubt in my mind, I must ask myself whether on the basis of the evidence which I do not accept am I convincedbeyond a reasonable doubt of his guilt. [28] Mr. S. takes no issue with the trial judge’s self-direction. His argument on this ground of appeal reduces to the proposition thatthe trial judge misapplied the principles that he correctly identified.

This contention requires a careful consideration of the trial judge’sreasons. [29] Before entering into this analysis, it is appropriate to first set aside any suggestion that it was somehow impermissible for thetrial judge to have found Mr. S. to be guilty based on the testimony of the younger child and the older child. The law has long-sincediscarded the idea that a person may not be convicted of sexual assault based on the uncorroborated testimony of a complainant (CriminalCode, s. 274). Neither the fact that the trial judge “preferred” the complainants’ testimony to that of Mr.

S., nor that this was the reasonfor rejecting Mr. S.’s testimony, creates a reviewable error. Instead, what is prohibited is for the trial judge to have rejected Mr. S.’stestimony “solely because it is inconsistent with the Crown’s evidence, which he prefers, and making a finding of guilt without furtherconsideration of reasonable doubt in light of the whole of the evidence – thus treating the standard of proof as a simple credibility contest”(Liberatore at para 12, emphasis added). [30] With this, I return to the trial judge’s reasons.

As already noted, after instructing himself on W.(D.), the trial judge identifiedthat the “crux of the Crown’s case” was the testimony of the younger child and the older child. The trial judge next briefly summarizedthe children’s evidence, and agreed that counsel for Mr. S. had, in cross-examination, created “some fog around the details in thechildren’s respective narratives”, but he concluded “it was just around the edges”.

He then stated that, when considering the “prohibitiveweight to be ascribed to the evidence of the children, and to adults as well”, he was required to consider the truth and reliability of theirtestimony and whether “the weight of their evidence [was] sufficient to displace the presumption of innocence”. The trial judge turned tothe circumstances of the interviews and the substance of what the two children had to say. Mr.

S. refers to the emphasized words found inthe following passage from the trial judgment as revealing the error he alleges: Detective Sergeant Smallbones did a good job in the interviews with the girls. They provided details that are absolutely consistent withthem relating a traumatic event which happened to them. The evidence of each of [the younger child] and [the older child] was compelling,and each in their own way searing. Each on their own withstood solid cross-examination. [The younger child’s] testimony was singular.

She was literally taken from the crime scene to the interview room with an interval of only

two hours passing. No substantial interaction with anyone. It was, as [Crown counsel] characterized it, pure testimony. [The older child’s] testimony was well after the events, which the Crown says constitute the crimes under counts 3, 4, and 5. I think it isfair to say that there may have been some confusion as to the numbers of times she had a sexual encounter with [Mr. S.]. However,proving the precise number is not an element of the offences.

Notwithstanding the fog around the edges of the respective narratives, each of the girls held to the core of the events they were relating.Specifically, they were inappropriately touched by [Mr. S.]. In addition, the videos demonstrate manifestly that each of [the younger child]and [the older child] are completely without guile. They were doing their best to tell their story. They were truthful and reliable. [Mr. S.’s] evidence was presented articulately; however, the weight of his denial is overwhelmed by the harsh truth of the evidence of [theyounger child] and [the older child].

The presumption of innocence has been displaced. The Crown has proven all of the elements ofcounts 1 to 4. Count 5 deserves some comment. The essence of count 5 is that something is given in exchange for sexual services to a person under 18.The crux of the offence must be that there is a quid pro quo. [The older child’s] testimony clearly sets out that there was. This was a household where Wi-Fi access was withheld both for punishment and to promote good sleep habits. [The older child’s]testimony was clear that in exchange for her sexual compliance with [Mr. S.], he promised her relief from Wi-Fi restriction.

The Crownhas made out count 5. Accordingly, I find [Mr. S.] guilty on all five counts. (Emphasis added) [31] When the impugned passage is read in context, I am satisfied that the trial judge did not undertake an impermissible line ofreasoning. Only after the trial judge had explained why he found the complainants’ evidence to be truthful and reliable, and found Mr. S.’sevidence to be unbelievable, did he find him to be guilty. Then, and only then, did he find that the “presumption of innocence” had beendisplaced.

In other words, the trial judge did not turn his decision-making into simply a contest of credibility, that is, one of whether thecomplainants were more believable than Mr. S. Instead, he determined guilt on the basis that the Crown had established proof beyond areasonable doubt based on the testimony of the two children. [32] Somewhat ironically, although Mr.

S. argued in this Court that the trial judge committed the legal error of turning the trial intoa credibility contest between himself and the complainants, he also recognized the centrality of the credibility determinations the trialjudge had been asked to make at the trial. In this regard, in his factum, Mr. S. characterized this as “a one-issue trial that pitted thecredibility of the accused against that of the complainants” (emphasis added). In making this statement, Mr.

S. was doing nothing more,or less, than recognizing that the ultimate decision to be made by the trial judge was whether the testimony of the two complainants wassufficient to establish his guilt beyond a reasonable doubt. [33] The cases relied on by Mr. S. all have distinguishing features. Referring first to C.L.Y., as I read it, what was important to FishJ. was that the trial judge in that case had reached her conclusion as to the appellant’s guilt “[b]efore even considering the appellant’sevidence” (at para 26).

This conclusion is reinforced in the next paragraph from C.L.Y., when Fish J. stated: [27] This conclusion, premature at best, amounted to a finding that the appellant was guilty as charged. As a matter of law, theappellant was presumed innocent; as a matter of fact, his fate had been sealed without any consideration at all of his evidence under oathat trial. (Emphasis in original) [34] As I have explained, here, the trial judge found Mr. S. guilty only after consideration of all of the evidence, including Mr. S.’sown testimony. Therefore, I see nothing in the minority judgment in C.L.Y. relied on by Mr.

S. that assists his argument. Finally, inrelation to C.L.Y., it bears emphasis that the majority judgment affirmed that a failure on the part of a trial judge to follow W.(D.)’s threesteps will not, in all cases, give rise to a reviewable error. In this regard, Abella J. stated: [7] However, and significantly, this Court has also consistently confirmed that these steps need not be religiously followed orarticulated.

Cory J. made this very clear in W. (D.): ... the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been underany misapprehension as to the correct burden and standard of proof to apply. [p. 758] He reiterated this caveat in R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, when he said, at p. 533, that the W.(D.) procedure was not meant to be followed “word for word as some magic incantation”.

The key is whether the correct burden andstandard of proof were applied, not what words were used in applying them. [35] Justice Abella went on to remind that “what W.(D.) offered was a helpful map” but “not the only route” (at para 8).

She statedthe purpose of the three stage test is “to ensure that triers of fact – judges or juries – understand that the verdict should not be based on achoice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonabledoubt as to the accused’s guilt” (at para 8). [36] In Liberatore, the trial judge’s reasoning was restricted to a comparative analysis of the evidence. This, and other cases cited byMr.

S., therefore involved situations where the appeal court had reason to believe that the trial judge had become confused as to theoperation of the criminal burden of proof. Here, I reach the opposite conclusion. The trial judge clearly had his eye on the correct legalprinciples. He oriented his judgment with reference to W.(D.) and, as I see it, he correctly applied those principles.

The conclusion reachedby the majority in C.L.Y. is apropos of the situation before the Court in this case: [12] The trial judge’s reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted tothe accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of

credibility can be said to undermine her articulated [sic] and correct statement of the law, or demonstrate that she lost sight of a paramountlegal principle like reasonable doubt. [37] In short, I am satisfied that the trial judge did not err in law by incorrectly applying the criminal burden of proof. B. Did the trial judge unevenly scrutinize the evidence? [38] Mr. S. argues that the trial judge committed a second error of law by applying “a different level of scrutiny to the evidence ofthe complainants than that of [Mr. S.]”.

More specifically, he alleges that the trial judge “applied no critical assessment of inconsistencieswhich could undermine the Crown evidence”. Mr. S. then offers examples of what he characterizes as “inconsistencies with thecomplainant’s evidence that warranted scrutinizing” by the trial judge but which were not scrutinized. [39] This aspect of Mr. S.’s appeal relates to a principle of trial fairness.

His argument hinges on the idea that “[w]here a trial judgehas applied different standards to the assessment of the evidence, the accused has not received a fair trial and there has been a miscarriageof justice, even if the evidence is capable of supporting a conviction” (R v Mehari, 2020 SKCA 37 at para 29, 387 CCC (3d) 147 [MehariCA], reversed 2020 SCC 40 [Mehari SCC]). In Mehari CA, the majority directed a new trial on the basis that the trial judge had committedthis type of error.

The dissenting judge applied similar legal principles to those referred to by the majority but would have found no errorby the trial judge in their application. In Mehari SCC, the Supreme Court set aside the majority decision. In the oral judgment for theCourt, Martin J. stated as follows: This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distincterror of law. In any event, we see no error in respect of this argument that would warrant intervention on appeal.

On this basis, the appeal was allowed, and the matter was remitted to this Court to deal with other grounds of appeal not addressed by themajority in Mehari CA. [40] In this case, both the Crown and Mr. S. argued the case on the basis that uneven scrutiny can constitute an error of law. As Iwill explain, it is my conclusion that Mr. S. cannot succeed on this ground if the principles identified in the existing case law are properlyapplied.

For these reasons, I would leave to a later case the apparent invitation by the Supreme Court to re-examine whether unevenscrutiny should be recognized as a separate, independent, ground of appeal or error of law. [41] To evaluate the merit of Mr. S.’s argument on this point, it is important to have a clear focus on a key principle. An allegationof uneven scrutiny is an assertion of methodological error on the part of the trial judge.

The majority in Mehari CA referred to R vWanihadie, 2019 ABCA 402 at para 36, 99 Alta LR (6th) 56, as authority for the proposition that “in order to succeed on the unevenscrutiny ground, an appellant is required to identify something sufficiently significant in the reasons or record to establish that the trialjudge employed a faulty methodology in deciding credibility” (Mehari CA at para 32, emphasis added).

The dissent made the same pointat paragraph 87, with reference to the following passage from R v Owen (2001), (ON CA), 150 OAC 378 (CA): [3] While an appellate court must defer to a trial judge’s assessment of credibility, intervention is appropriate where a trial judge’sreasons reflects [sic] legal error in the method used to assess credibility. In particular, this court has held that the application of a stricterstandard of scrutiny to the evidence of an accused than that used to assess the evidence of Crown witnesses amounts to legal errorjustifying appellate intervention: see R. v.

C (J.) (2000), (ON CA), 145 C.C.C. (3d) 197, R v. C.S., [1999] O.J. No.2200 and R. v. Gostick (1999), (ON CA), 137 C.C.C. (3d) 53. (Emphasis added by the dissenting judge in Mehari CA) [42] Because uneven scrutiny of evidence involves methodological error, on appeal it has attracted a correctness standard of review:R v C.A.M., 2017 MBCA 70 at para 33, 354 CCC (3d) 100; R v Quartey, 2018 ABCA 12 at para 15, 430 DLR (4th) 381, aff’d 2018 SCC59, [2018] 3 SCR 687; and R v S.M.C., 2020 ABCA 19 at para 20, 5 Alta LR (7th) 47.

One reason the Supreme Court may have had forraising the question of whether uneven scrutiny should be considered its own separate ground of appeal or error of law may relate to theimpact that doing so may have on appellate review of trial decisions. If uneven scrutiny is not strictly limited to a review of a trial judge’smethod of reasoning, it will tend to obscure or undermine the standard of review applicable when attacks are made on findings of fact orthe reasonableness of a trial verdict, or other recognized grounds of appeal such as relating to the sufficiency of trial judges’ reasons.

Thispoint was made in the dissent in Mehari CA in the following terms: [88] A review for the purposes of identifying legal error of this type must not be conflated with a challenge to the actual findings of factmade by the trial judge or the reasonableness of the verdict. These latter types of challenges invite an application of their own, veryexacting, standards of review. As explained by Deschamps J. in R v R.P., 2012 SCC 22, [2012] 1 SCR 746: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007SCC 5, [2007] 1 S.C.R. 190). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [89] In short, a challenge to the methodological approach of a trial judge cannot become a vehicle to sidestep the standard of reviewapplicable in these latter two circumstances: R v Gravesande, 2015 ONCA 774 at para 18, 330 CCC (3d) 497 [Gravesande]; R v George,

2016 ONCA 464 at para 35, 349 OAC 347; R v Radcliffe, 2017 ONCA 176 at paras 23-26, 347 CCC (3d) 3 [Radcliffe]; R v C.A.M., 2017MBCA 70 at paras 33–37, 354 CCC (3d) 100; and R v Wanihadie, 2019 ABCA 402 at para 43, 99 Alta LR (6th) 56. (Emphasis in original) [43] R v Radcliffe, 2017 ONCA 176, 347 CCC (3d) 3 [Radcliffe] provides a useful

summary of some of the basic principles thathave been applied to appellate assessment of a claim of uneven scrutiny: [23] First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findingsare the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument withskepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinationsand to re-try the case on an arid, printed record: R. v.

Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para.59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35. [24] Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned thesame task on the same evidence could have assessed credibility differently.

Nor is it enough to show that the trial judge failed to saysomething she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59. [25] Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judgeor elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing theevidence of the appellant and complainant: Howe, at para. 59; George, at para. 36. [26] Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassessand reweigh evidence: George, at para. 35; R. v.

Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. (Emphasis in original) [44] With these basic principles in place, I return to Mr. S.’s appeal and his allegation that the trial judge committed the legal errorof uneven scrutiny. His arguments all relate, in one way or the other, to the suggestion that the trial judge failed to adequately analyzealleged inconsistencies in the complainants’ evidence. [45] The first alleged inconsistency is said to relate to the failure of the trial judge to address the absence of tearing, bleeding, orinjury to the girls or complaints by Ms. D.P. or medical professionals. Mr.

S.’s concern on this point could only relate to the older childsince the younger child did not describe any action by Mr. S. that might have led to physical injury. The older child testified that she bledthe first time that Mr. S. put his penis in her vagina. She also explained why she did not report the sexual assaults. Therefore, there was nocontradiction or inconsistency between the older child’s testimony and the absence of any third-party observation of physical injury on herpart at the time she made her complaint. [46] Second, Mr.

S. points to the fact that his counsel had elicited in cross-examination that the older child wanted to live with herfather and that Mr. S. had interfered with how the younger child and the older child wanted to live. Of a similar character was the youngerchild’s evidence that she had self-harmed, had suicidal ideas, had expressed opposition towards figures of authority, and had threatened todrop out of school. Of course, these are not inconsistencies at all, but instead are matters that might – and which counsel for Mr.

S. urgedshould – be reasons to find the complainants’ testimony to be untruthful or unreliable. [47] The third area of alleged “inconsistency” was in relation to the older child’s inability to provide many details as to the times,dates and places of the alleged assaults. However, this was not ignored by the trial judge: [The older child’s] testimony was well after the events, which the Crown says constitute the crimes under counts 3, 4, and 5. I think it isfair to say that there may have been some confusion as to the numbers of times she had a sexual encounter with [Mr. S.].

However,proving the precise number is not an element of the offences. Notwithstanding the fog around the edges of the respective narratives, each of the girls held to the core of the events they were relating.Specifically, they were inappropriately touched by [Mr. S.]. In addition, the videos demonstrate manifestly that each of [the younger child]and [the older child] are completely without guile. They were doing their best to tell their story. They were truthful and reliable. [48] In oral argument in this Court, Mr.

S.’s counsel also submitted that the trial judge did not properly scrutinize contradictions thatemerged during cross-examination of the younger child. The following exchange is illustrative of evidence that Mr. S. refers to whenmaking this argument: Q Do you remember -- do you ever remember him talking about the lowerpart of his -- his leg, just above his knee, I guess, not the lower part of hisleg, but I guess middle of his leg above his knee where if you grabbed himthere and, kind of, moved around he’d get quite ticklish; do you rememberhim talking about that?A No, sorry. [49] Mr.

S. suggested that the younger child’s apologetic answer, “No, sorry”, contradicted her testimony-in-chief because itdemonstrated that she did not remember the events she had described. A similar suggestion was made in relation to the following questionsput to the younger child relating to how the vibrator she described came to be a topic of conversation in the bed:

Q And I’m going to suggest to you that, in the course of being on the bed, it -- it kind of, rolled out; do you remember that? A No. Q Okay, and [Mr. S.] grabbed it and said, Don’t worry about that, that’s your mother’s and then -- do you remember that, sorry? A No. Q And you said, something to the effect of, You -- you’re gross. You guys are gross; do you remember that? A No, I don’t, sorry. [ 50 ] Respectfully, I do not read the transcript as displaying any contradictions in the younger child’s testimony. She had not testified to the events in the manner described in the questions put to her.

I interpret her answers to simply reflect that she did not remember the events being as they were described in the questions put to her. [ 51 ] The final example of alleged uneven scrutiny, offered as contrast to what is said to be the trial judge’s lenient treatment of the complainant’s testimony, was his statement that Mr. S.’s “evidence was presented articulately”. Mr. S.’s counsel invited this Court to understand that from this statement the trial judge was saying that Mr. S.’s testimony had been “coherent” or “logical”. His proposition was that, when Mr.

S.’s coherent or logical testimony is stacked against that of the complainants, the fact of uneven scrutiny becomes evident. However, the strength of this argument depends on the validity of Mr. S.’s

interpretation of the trial judge’s statement that his evidence was “articulate”. In this regard, I would interpret the trial judge’s statement that Mr. S.’s evidence was “presented articulately” as nothing more than his observation that Mr. S.’s testimony was “fluent” or “clear”, in keeping with a common definition of “articulate” as found in The Shorter Oxford Dictionary , 6th ed (Oxford: Oxford University Press, 2007). I see no uneven treatment in the trial judge’s reasons when he expressed the conclusions that: (

a) the children’s testimony was truthful and reliable; (

b) Mr. S.’s fluent and clear testimony was not to be believed; and (

c) at the end of the day, he had no reasonable doubt as to Mr. S.’s guilt. Mr. S. is not the first well-spoken witness who has not been believed by a trial judge, nor will he be the last. I see no hallmark of uneven scrutiny in this aspect of the trial judge’s reasons. [ 52 ] I also see nothing equivalent to the uneven treatment of evidence found in the cases cited by Mr. S. under this ground of appeal. In R v D.D.S. , 2006 NSCA 34 , 207 CCC (3d) 319, a father had been convicted of sexual touching and sexual assault of his daughter, based largely on the testimony of the complainant.

The Nova Scotia Court of Appeal overturned the conviction, not on grounds of uneven scrutiny, but because the trial judge had misapprehended evidence and misapplied principles relating to the burden of proof. In that case, because the trial judge “did not reject the evidence of the complainant, he concluded that the charges had been made out” (at para 43).

For the reasons I have given, I am satisfied that this was not the approach adopted by the trial judge in this case. [ 53 ] The trial judge in R v Rhodes , 2011 MBCA 98 , 281 CCC (3d) 29 [ Rhodes ], “did not refer to W.(D.) or to the suggested instructions articulated in that case”. While this alone was not a reversible error, a “substantive analysis of the trial judge’s assessment of the evidence [did] not demonstrate that he appreciated his obligation to consider whether the accused’s evidence raised a reasonable doubt with respect to every element of the offence” (at para 6).

This stands in contrast to the trial judge’s reasons in this case. Here, the trial judge expressly recognized that the burden on the Crown was “proof beyond a reasonable doubt of each element of each count”. He also recognized that the weight of the evidence must be “sufficient to displace the presumption of innocence”. He later concluded that the “presumption of innocence has been displaced”.

I see no room for the inferences that led the Manitoba Court of Appeal to conclude in Rhodes that, in that case, the trial judge had misapplied the criminal burden of proof. [ 54 ] R v Phan , 2013 ONCA 787 , 313 OAC 352 [ Phan ] involved a challenge to a sexual assault conviction on two grounds, namely, that the trial judge erred in his articulation and application of the test in W.(D.) and that he had subjected the evidence of the two central witnesses to an uneven level of scrutiny.

In summarizing her reasons for rejecting the argument based on alleged uneven scrutiny, Epstein J.A. wrote: [74] This is not a case in which the trial judge used two different measuring sticks in gauging the credibility of the two witnesses. While the trial judge attached less weight to the weaknesses in [a witness’s] evidence than the defence urged upon him, he was, for the reasons I have set out, entitled to do so. Phan is therefore not only distinguishable, but in outcome it is unhelpful to Mr.

S. [ 55 ] In R v Rhayel , 2015 ONCA 377 , 324 CCC (3d) 362, the Ontario Court of Appeal set aside a conviction because the trial judge had committed three errors, namely, “by admitting the videotaped statement for its truth, by overemphasizing the complainant’s demeanour, and by subjecting the appellant’s evidence to stricter scrutiny than that of the complainant”. These three errors were “interrelated” (at para 107), and therefore the case may be distinguished on that basis alone.

So far as the decision was based on uneven scrutiny, Epstein J.A. observed that the trial judge had “dealt with difficulties in the complainant’s evidence, without making a meaningful attempt to reconcile or explain them” (at para 102) yet had “assigned too much value to … questionable factors” (at para 103). This led to the conclusion that “ the trial judge applied an unforgiving level of scrutiny to the appellant’s testimony but failed to adequately address the comparable problems apparent in the complainant’s evidence” (at para 106).

I do not see the same problem here. [ 56 ] In R v Gravesande , 2015 ONCA 774 , 330 CCC (3d) 497 [ Gravesande ] a criminal defence lawyer had been convicted of smuggling drugs into a jail for a former client during a professional visit. At trial, the Crown had called several employees working at the jail, the investigating officer and an expert witness who testified about the value of the drugs found in the possession of the former client. The appellant testified on his own behalf and called a character witness.

The conviction was set aside because the “trial judge’s reasons demonstrate that he rejected the appellant’s testimony for speculative reasons, while failing to apply similar scrutiny to the evidence of the Crown” (at para 20). In this case, the trial judge’s reason for rejecting Mr. S.’s evidence was not “speculative” at all. Instead, it was grounded in his conclusion that the testimony of the complainants left him with no reasonable doubt as to Mr.

S.’s guilt. [ 57 ] In R v H.C. , 2018 ONCA 779 , 367 CCC (3d) 514, the trial judge was found to have misapplied the burden of proof in what was described as “essentially a two-witness case” (at para 1). The accused had testified, yet the trial judge had stated that the decision was “uniquely challenging, as the analytical tools of R. v W.(D.) are not readily available, even though this is a case involving straight

credibility” (at para 5). As observed by the Ontario Court of Appeal, this was “exactly the kind of case that required an application of theprinciples set down in W.(D.)” (at para 8, emphasis added). There were other aspects of the trial decision that were problematic, includinga misstatement of the burden of proof.

As I have explained, I am satisfied in this case that the trial judge correctly applied W.(D.) and thecriminal burden of proof more generally. [58] The trial judge in R v Willis, 2019 NSCA 64, 379 CCC (3d) 30 [Willis] was found to have committed three errors: the improperuse of prior inconsistent statements by a witness; a misapplication of the rule in Browne v Dunn (1893), 6 R 67 (UK HL); and unevenscrutiny.

The first two errors were part of the uneven scrutiny the Nova Scotia Court of Appeal found the trial judge to have brought tobear on the evidence of the accused when compared to that of the Crown: [47] In my view, the errors made by the trial judge in relation to the first two grounds of appeal tilted the balance in favour of theCrown and against Mr. Willis. The trial judge buttressed the credibility of [the complainant] by improperly using prior consistentstatements to corroborate her evidence. She then undermined Mr. Willis’ credibility by incorrectly applying the rule in Browne v.

Dunn. [59] The Court in Willis also found “other examples of this unequal treatment”, including, as in Gravesande, “what could only bedescribed as collateral or minor inconsistencies to assist in [the trial judge’s] conclusion that Mr. Willis [the accused] was not credible” (atpara 48). In the latter regard, the Court referred to an inconsistency that “does not exist” and “more importantly, is on a matter of nosignificance” (at para 50). The Court also pointed out that the trial judge had misapprehended the accused’s testimony: “The trial judgeappears to discount Mr.

Willis’ evidence on a point that he did not testify about and which was of no significance” (at para 52) and did“not appear to have subjected [the complainant’s] evidence to the same degree of scrutiny as she did for Mr. Willis” (at para 55). TheCourt referred to the facts that the complainant “admitted lying on several previous occasions” (at para 56) and that differences betweenthe testimony of the complainant and the accused remained unexplained in the trial judge’s reasons. These differences included whetherthe accused was circumcised.

The trial judge had set out the evidence of the complainant on the point but made no reference to theevidence of the accused or to that of his wife that contradicted it. The trial judge criticized the accused “on immaterial and sometimes non-existent contradictions whereas this evidence, which potentially goes to the heart of the complainant’s credibility and reliability, is notreferred to” (at para 61). Again, I see nothing similar to have occurred here. [60] The final case referred to by Mr. S. is R v Roth, 2020 BCCA 240.

In that case, the British Columbia Court of Appeal found it“‘clear’ from the [trial] judge’s reasons that different standards were applied” (at para 53). The Court grounded this conclusion based onthree errors in principle committed by the trial judge: (

a) adversely assessing the accused’s evidence “using speculative reasoning”;(

b) relying on the “fruits of improper cross-examination”; and (

c) failing to “appreciate significant inconsistencies and contradictionsinvolving the complainant’s evidence and to resolve them before accepting the complainant’s evidence as proving non-consent” (atpara 54). The Court held that the “cumulative effect” of these led to the conclusion that the trial judge had “applied different standards toher credibility assessment” (at para 55). I see no analogous errors in principle in the circumstances of this case. [61] In my respectful view, therefore, none of the cases referred to by Mr.

S. in relation to this ground of appeal assist his position.In each of case, the appeal court was able to conclude that the trial judge actually applied different standards of scrutiny in assessing theevidence of the appellant and the complainant. I see no basis to conclude that this occurred here. [62] I have analyzed Mr. S.’s argument that the trial judge committed the error of uneven scrutiny without reference to the fact thatthe key evidence was provided by two child witnesses. It was acknowledged by Mr. S. that they were both competent to testify.

Both Mr.S.’s counsel and the trial judge adverted to the fact that child witness testimony is not subject to the same level of scrutiny as the testimonyof adult witnesses. Mr. S. did not contend that it was not open to the trial judge to enter a conviction based substantially on the children’stestimony or because trial judges should impose on children’s testimony the same exacting standard that is imposed on adults (e.g., R v B.(G.), (SCC), [1990] 2 SCR 30). [63] The case law uniformly holds that a claim of uneven scrutiny is not easily established. In my respectful view, Mr.

S. has failedto make it out on the reasons or record in this case. [64] If there is merit to Mr. S.’s arguments, it cannot be based on the idea that his evidence was treated differently than that of thecomplainants. Instead, he is left to assert that the trial judge failed to adequately explain why he disbelieved Mr. S., why he was not leftwith reasonable doubt by Mr. S.’s testimony and why he found the children’s testimony established Mr. S.’s guilt notwithstanding frailtiesand limitations in their testimony. This is a complaint relating to the sufficiency of reasons, not to uneven scrutiny.

I turn now to thisargument. C. Were the trial judge’s reasons inadequate? [65] Mr. S. argues that the trial judge failed to give adequate reasons to explain his guilty verdict. It is, of course, an error of law fora judge to fail to provide an explanation of his or her decision that is sufficiently intelligible to permit appellate review: R v Sheppard,2002 SCC 26 at para 1, [2002] 1 SCR 869 [Sheppard].

An appeal based on insufficient reasons “will only be allowed where the trialjudge’s reasons are so deficient that they foreclose meaningful appellate review” (R v Dinardo, 2008 SCC 24 at para 25, [2008] 1 SCR788 [Dinardo]; and R v Vuradin, 2013 SCC 38 at para 10, [2013] 2 SCR 639). [66] Mr. S. suggests that the trial judge’s reasons fail to “show the pathway to guilt” and also fail to allow “meaningful appellatereview”. He complains that the trial judge failed to grapple with the deficiencies in the evidence and also that he “made no case-specificfindings on material issues of credibility”.

All of this is said to make it “impossible to determine how the [trial judge] came to theconclusion of rejecting [Mr. S.’s] evidence or if he even rejected [Mr. S.’s] evidence at all”. [67] Appellate courts are instructed to adopt a functional approach in their review of reasons (Sheppard at paras 24–28). In Dinardo,the Supreme Court emphasized that the inquiry “should not be conducted in the abstract, but should be directed at whether the reasonsrespond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel” (at para 25).

In R v R.E.M.,2008 SCC 51, [2008] 2 SCR 3 [R.E.M.] the Supreme Court explained the proper approach for appellate review of trial reasons: [15] This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a

criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providingpublic accountability and permitting effective appellate review. [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence,the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and50; R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524). [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to showhow the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard.But the description in Morrissey of the object of a trial judge’s reasons is apt.

Doherty J.A. in Morrissey, at p. 525, puts it this way: “Ingiving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made thatdecision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis forthe verdict.

The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions ofcounsel and the history of how the trial unfolded. [18] Explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in theprocess of arriving at the verdict. ... [19] The judge need not expound on matters that are well settled, uncontroversial or understood and accepted by the parties.

Thisapplies to both the law and the evidence. ... [20] Similarly, the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece ofevidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. … [25] The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functionsreasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal.

Thefunctional approach does not require more than will accomplish these objectives. Rather, reasons will be inadequate only where theirobjectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. This principle from Sheppard wasreiterated thus in R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 31: The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding ground ofappeal should be rejected. A more contextual approach is required.

The appellant must show not only that there is a deficiency in thereasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case” (para. 33).The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appealcourt to review the correctness of the trial decision. [Emphasis in original.] (Emphasis in original) [68] In R.E.M., the British Columbia Court of Appeal had faulted a trial judge “principally for not giving sufficiently precise reasonsfor accepting the complainant’s evidence and rejecting the accused’s evidence” (at para 42).

The Supreme Court found the appeal court tohave erred: [43] The answer is provided in Dinardo and [R v Walker, 2008 SCC 34, [2008] 2 SCR 245] — what is required is that the reasons, readin the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter.Provided this is done, detailed recitations of evidence or the law are not required. [44] The degree of detail required may vary with the circumstances.

Less detailed reasons may be required in cases where the basis ofthe trial judge’s decision is apparent from the record, even without being articulated.

More detail may be required where the trial judge iscalled upon “to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue”:Sheppard, at para. 55, point 6. [69] These principles were recently reviewed by this Court in R v J.A., 2016 SKCA 153 [J.A.], R v Thompson, 2017 SKCA 33, andR v R.I.G., 2020 SKCA 26. [70] Since the “foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, thesubmissions of counsel and the history of how the trial unfolded” (R.E.M. at para 17), it is appropriate to place the reasons in the contextof what had occurred up to the point of their delivery.

In this regard, it was understood by Mr. S. from the outset that the focus of the trialwould be narrow. In the briefest of opening statements, his counsel described this as a “fairly straightforward case”, one that he said was“going to be essentially a W.(D.) case”. This idea was reiterated at several later junctures, including when an issue arose relating to latedisclosure, a point which forms the fourth ground of appeal discussed later in these reasons. At the close of Mr. S.’s case, his counselstated that he understood that there was a “fairly narrow issue” and that he expected to be brief in his submissions.

After discussingscheduling, the following exchange took place between the trial judge and Mr. S.’s counsel: THE COURT: -- as -- as -- as you say. As you said at the beginning, with testimony of this type it’s credibility and W.(D.). MR. PFEFFERLE: Exactly, yeah. THE COURT: I mean, everybody -- we all understand it. It’s a question of making the call. MR: PFEFFERLE: Yeah. [71] Therefore, to paraphrase R.E.M., the parties should have had an expectation that the trial judge would, in his reasons, tell them

if he believed Mr. S.’s testimony or if he was left with reasonable doubt by it, and, if not, if the Crown’s evidence established the guilt of Mr. S. beyond a reasonable doubt and explain why he reached these conclusions . [ 72 ] Against this background, I return to Mr. S.’s arguments in this Court. He first asserts that it is impossible from the trial judge’s reasons to know “ if he even rejected [Mr. S.’s] evidence” (emphasis added). This proposition is easily set aside. The trial judge’s conclusion was that the “weight of [Mr.

S.’s] denial is overwhelmed by the harsh truth of the evidence of [the younger child] and [the older child]”. There is nothing disguised or oblique in this. No guesswork is involved; the trial judge emphatically rejected Mr. S.’s evidence and found guilt beyond a reasonable doubt based on that rejection and his belief in the truth and reliability of the younger child’s and the older child’s testimony. The trial judge’s reasons may be succinct, but they clearly express his conclusion that he rejected Mr. S’s evidence. [ 73 ] Mr.

S.’s second assertion is that it is impossible to determine why the “weight of his denial” was “overwhelmed by the harsh truth of the evidence” of the children; that is, why his testimony was not believed and why it did not give rise to a reasonable doubt. This submission invites a scrutiny of the trial judge’s reasons in the context of the arguments made by Mr. S. at the conclusion of the evidence. [ 74 ] In relation to the alleged assault of the younger child, Mr. S.’s counsel invited the trial judge to “use common sense”.

Counsel stated his appreciation that “there is obviously an overarching principle that child witnesses are treated differently and people react in different ways”, but then invited the trial judge to consider the way in which the younger child had given her video statement. He then observed that “children are often off base”, invoked W.(D.) and asked rhetorically if the trial judge was not “left with at least a reasonable doubt with the accused’s guilt in this particular case?” [ 75 ] Each of these points were dealt with by the trial judge in his reasons.

He recognized that when a story was told twice, whether by an adult or child, “there will be differences”. He recognized that while counsel had done “an excellent job of creating some fog around the details in the children’s respective narratives” it was “just around the edges”. The trial judge considered not only each child’s demeanour, but the detail of their testimony. In relation to the younger child, he also pointed out that there was no opportunity for her testimony to have been influenced by outside agencies: Detective Sergeant Smallbones did a good job in the interviews with the girls.

They provided details that are absolutely consistent with them relating a traumatic event which happened to them. The evidence of each of [the younger child] and [the older child] was compelling, and each in their own way searing. Each on their own withstood solid cross-examination. [The younger child’s] testimony was singular. She was literally taken from the crime scene to the interview room with an interval of only two hours passing. No substantial interaction with anyone.

It was, as [Crown counsel] characterized it, pure testimony. [ 76 ] In what I take as his response to the suggestion that he should critically scrutinize the way in which the younger child had delivered her testimony, the trial judge described her, and her sister, as “completely without guile”. He stated that they “were doing their best to tell their story”. [ 77 ] Also in relation to the younger child, Mr. S.’s counsel argued at trial that it was dangerous to convict Mr. S. based on her testimony because she had self-harmed, had suicidal tendencies and had displayed other “bizarre behaviour”.

These submissions led up to the following exchange between the trial judge and Mr. S.’s counsel: THE COURT: Now, when I address the jury I say, proof beyond a reasonable doubt is you have to say to yourself you are sure. MR. PFEFFERLE: Exactly. And are you sure? Can you be sure that [the younger child], suicidal, self-harm [ sic ], oppositional, young girl, could she have been confused by the circumstances? Absolutely. THE COURT: True. But again, there -- there were those circumstances surrounding [the younger child], but we also had the benefit of the video literally hours after the event. MR.

PFEFFERLE: Yes, we did. Yes, we did. THE COURT: That’s the core of our friend’s case. [ 78 ] Although the trial judge’s later reasons make no reference to the specific submissions made in relation to the younger child’s tendencies and behaviours, I am satisfied that, from this exchange and the explanations given in the reasons for accepting the children’s testimony, the trial judge simply concluded that Mr.

S.’s arguments on this point were not persuasive. [ 79 ] In specific reference to the charges involving the older child, which involved the allegation of repeated serious sexual assaults over an extended period, Mr. S.’s counsel pointed out in argument that there was no corroboration. However, he also acknowledged that corroboration is not required and “[s]ometimes the testimony of a witness can be so compelling that, notwithstanding the lack of corroboration, you could still convict the accused”.

This submission can be seen as the root of the trial judge’s statement in his reasons that the testimony of both complainants was “compelling” and “searing”. In argument, Mr. S.’s counsel also invited the trial judge to critically assess whether Mr. S. had the opportunity to have committed the offences over the period described by the older child. However, this submission was also answered by the trial judge in his exchanges with counsel, even before he delivered his reasons. I would reach the same conclusion in relation to the argument Mr.

S. made to the trial judge that he should find reasonable doubt based on the children having a motive to lie grounded in their unhappiness that Mr. S. controlled their access to the internet and wanted to live with their father. In each of these instances, based on the dialogue between the trial judge and counsel, I have no doubt that, even before the trial judge delivered his reasons, Mr. S. knew that this argument had been rejected by the trial judge. [ 80 ] When the trial judgment is read in the broader context of what preceded its delivery, Mr.

S. should have been left with a clear understanding that the trial judge: (

a) heard and considered the evidence questioning whether Mr. S. had the opportunity to commit the acts described by the older child; (

b) decided that Mr. S.’s guilt had been proven to his satisfaction, beyond a reasonable doubt; and (

c) had based that decision on what he found to be the truthful and reliable evidence of the older child.

[81] To this point, I have not discussed the trial judge’s treatment of Mr. S.’s testimony in his reasons. His counsel argues thatMr. S.’s testimony, which directly contradicted that of the complainants, was plausible. He argues that he is “left guessing” why he wasnot believed. He refers to R v Bradshaw, 2010 ONSC 2080 [Bradshaw], R v Laing, 2017 NSCA 69, 351 CCC (3d) 393 [Laing] and R vCunningham, 2011 ONCA 543, 274 CCC (3d) 338 [Cunningham]. [82] Mr.

S. describes Bradshaw as being “factually similar”, and he quotes the following passage: [12] The trial judge disbelieved the appellant but there is only one clue in his decision as to the reason for disbelieving the appellant,namely the statement “The facts related to us by Mr. Bradshaw certainly stretch one’s imagination to a very high limit.” No reference toany of the evidence of the appellant is made to assist in what stretched the imagination of the trial judge to a very high limit.

One shouldnot be left guessing as to what the trial judge might have been referring to: see, most recently, Law Society of Upper Canada v. Neinstein,2010 ONCA 193 , [2010] O.J. No. 1046 (C.A.) at paras. 73 and 74. [13] In finding that the complainant “made no attempt to embellish or worsen the scenario” and that she “provided a precise andtruthful rendition of what occurred” I must conclude that the trial judge materially misapprehended the evidence of the complainantbecause this finding suggests that there were no inconsistencies in the complainant’s evidence.

As previously noted, there were a numberof inconsistencies which required resolution. (Emphasis in Mr. S.’s factum) [83] However, the facts in Bradshaw were not the same as those here and the insufficiency of reasons was but one of several basesupon which the trial judgment was overturned by the

summary conviction appeal judge. In that case, the trial judge had lamented that“[s]ome people are under the false impression that they get into the witness box and present a blank denial of an incident and that thisshould automatically result in an acquittal based on the principles of W.(D.)” (at para 3). However, as observed by McKinnon J., the“evidence of the appellant constituted more than ‘a blank denial’”. Instead, it was “detailed and contradicted that of the appellant oncritical points” (at para 18). The complainant’s testimony was also problematic.

That evidence “revealed a number of inconsistencies, bothinternal and external” (at para 4). The complainant contradicted herself when she admitted that, contrary to what she had said in herexamination-in-chief, previously “she had assaulted the appellant” (at para 5). It is therefore hardly surprising that the reasons forjudgment, which failed to disclose “why the decision was made in respect of believing the complainant and disbelieving the appellant”,were found to be problematic (at para 18). [84] Laing and Cunningham are similarly distinguishable.

In Laing, the judgment consisted of fourteen paragraphs, nine of whichamounted to the “trial judge’s self-instruction on fundamental criminal law principles” (at para 10). There was “not even a mention of theappellant’s evidence” (at para 19). The issue in Cunningham was whether the written reasons for judgment “reflect[ed] the reasoningprocess that led to the decision” (at para 2). In announcing her decision, the trial judge had indicated that “reasons would be available laterthat day” (at para 9). They were not. Instead, they came more than two years later.

It was common ground that the oral decision did notprovide adequate reasons, but nor was it intended to. Justice Doherty introduced his analysis by noting that the appeal was “not a caseabout the adequacy of the trial judge’s reasons” at all (at para 30). The other cases referred to by Mr. S. are equally distinguishable. [85] Ultimately, every case which involves an allegation of insufficient reasons must be evaluated on its own facts in the context ofthe principles that govern appellate review for this alleged error.

In my respectful view, R.E.M. offers a complete answer to the submissionthat the trial judge’s reasons in this case were legally deficient: [66] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground forfinding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’sevidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial.

He gave reasons foraccepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony onspecific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where itconflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required.

Inthis context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonabledoubt. [86] I recognize that the trial judge in R.E.M. had provided more detailed reasons than did the trial judge in this case. However, I donot find this distinction to be significant where the point of conflict between the testimony of the complainants, on the one hand, and thetestimony of the accused, on the other, relates to whether the actus reus of the offence had occurred.

Justice Jackson’s explanation in J.A.responds to this distinction: [28] In this Court, counsel for JA argues that the level of detail in the reasons of the trial judge in R.E.M. explains why the SupremeCourt of Canada set aside the decision of the British Columbia Court of Appeal.

As part of this argument, he contends that the reasons inthis case do not rise to the level of detail provided by the trial judge in R.E.M. [29] A major difference between R.E.M. and this appeal, however, is that the accused in R.E.M. admitted to having sexual intercoursewith the complainant, but claimed the relationship began after the complainant had reached the age of consent. In the case before us, thecomplainant described abuse that began when she was 7 and ended when she was 13.

She complained of a series of acts beginning withcuddling, progressing through stroking, digital penetration and attempts at full intercourse. In such circumstances, a conflict like whetherthe child noticed the state of the penis or whether the complainant, now an adult, remembers the state of the penis, is of much lesssignificance.

This is no singular particular upon which the parties are divided, such as whether the acts took place when the complainantwas under or over the age of consent as it was in R.E.M. [30] In the within appeal, there can be no doubt that where the complainant’s evidence and the accused’s evidence conflicted, the trialjudge accepted the evidence of the complainant. He gave reasons, finding her testimony to be “credible, cogent and compelling”, JA’sevidence to be “perfunctory” and he convicted JA.

Looking at the reasons, read in light of the evidence and the submissions of counsel,they do meet the requirements for sufficient reasons.

[87] In

summary, the trial judge’s reasons disclose why he did not believe Mr. S.’s testimony, why he was not left with a reasonabledoubt by that testimony and why he concluded the Crown’s evidence had proven Mr. S. to be guilty beyond a reasonable doubt. The trialjudge’s reasons were short. But, when the trial judge’s reasons are read in the context of the evidence at trial and the submissions ofcounsel, they fulfil their essential function. In short, the trial judge’s reasons were not inadequate. D. Did the trial judge err by failing to address prejudice suffered by Mr. S. asa result of late disclosure? [88] Mr.

S.’s final argument relates to the timing of the disclosure to him of communications that had occurred between Ms. D.P.and the police. Mr. S. maintains that his s. 7 Canadian Charter of Rights and Freedoms [Charter] right to full answer and defence hadbeen violated. [89] Mr. S.’s counsel raised the issue of late disclosure of certain Crown documents with the trial judge before the Crown hadclosed its case, but after the witness to whom the documents related had testified. An exchange occurred between the trial judge and Mr.S.’s counsel, but, in the end, Mr.

S. made no application to establish that a Charter breach had occurred. Mr. S. is therefore advancing, as aground of appeal, an issue that was identified at trial but in respect of which a decision by the trial judge was neither asked for nor made. Itis a new issue on appeal. [90] This Court in R v Ahmed, 2019 SKCA 47, [2019] 10 WWR 99, recently reviewed the factors to be weighed when consideringwhether to allow a Charter issue to be raised for the first time on appeal.

Justice Barrington-Foote provided a succinct review of the limitsgoverning the raising of new issues on appeal: [15] The Charter argument was not raised at trial. As a rule, an issue not raised at trial cannot be raised for the first time on appeal.There are, however, exceptions to this rule.

The decision as to whether to entertain a new argument on appeal is discretionary and is “to beguided by the balancing of the interests of justice as they affect all parties” (Kaiman v Graham, 2009 ONCA 77 at para 18, 245 OAC130): see also R v Reid, 2016 ONCA 524 at para 44, 338 CCC (3d) 47 [Reid] (leave to appeal to the SCC denied ). In Rv Gill, 2018 BCCA 144, 26 MVR (7th) 138, Fitch J.A. usefully summarized the issue as follows: [12] In Quan v. Cusson, 2009 SCC 62 at paras. 36–38, the majority of the Court laid out a framework for determining whether topermit a party to raise a new issue on appeal.

The first question is whether the issue is new. If so, the second question is whether theevidentiary record and the interests of justice support granting an exception to the general rule against raising new issues on appeal. Indetermining whether the interests of justice warrant an exception to the general rule, it is appropriate to consider whether entertaining theissue for the first time on appeal might lead to a different ultimate outcome for the parties: L.S. v. G.S. [2014 BCCA 334] at para. 112. AsBinnie J. said in Performance Industries Ltd. v.

Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, a court may hear a newissue on appeal if refusing leave would risk an injustice. [16] There is authority for the proposition that a failure to raise the proposed new issue at trial for tactical reasons should weighheavily in the interests of justice analysis, against the party who seeks to change course on appeal: R v Brown, (SCC),[1993] 2 SCR 918 at 927 per L’Heureux (Dubé J. dissenting, but not on this point); Reid at para 43; R v Dignard, 2017 MBCA 123 at para7; and R v Downey, 2015 NBCA 25 at para 12, 435 NBR (2d) 315. [91] I am not certain that I can agree with the Crown’s characterization of Mr.

S.’s decision not to make a Charter applicati

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