R v Solivio, 2022 SKCA 117

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with s. 486.4(1) of the Criminal Code , directing that any information identifying the under-age complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3409 Citation: R v Solivio , 2022 SKCA 117 Date: 2022-10-13 Between: Giovanni Bayot Solivio Appellant And His Majesty the King Respondent Before: Jackson, Schwann and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Barrington-Foote On appeal from: CRIM 129 of 2019 (QB), Saskatoon Appeal heard: October 5, 2021 Counsel: Bailee Massett for the Appellant Lori O’Connor for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Giovanni Solivio was charged with sexually assaulting S.D., contrary to s. 271 of the Criminal Code . Following a judge-alone trial in the Court of Queen’s Bench, Mr. Solivio was convicted and sentenced to 20 months of imprisonment, along with various ancillary orders. [ 2 ] The incident that gave rise to the charge occurred when S.D. was 5 or 6 years of age.

A year later, she gave a video-recorded statement to the police about the alleged assault. She was 8 years old when the matter finally went to trial. The trial judge found S.D. to be both credible and reliable. [ 3 ] Mr. Solivio appeals from his conviction. He asserts the trial judge erred in her application of the legal principles concerning the assessment of evidence given by a child witness in two ways.

The first alleged error is said to arise from the trial judge’s failure to take a common-sense approach to S.D.’s evidence and, the second, from a flawed reliability assessment that was tainted by an isolated, piecemeal approach to various inconsistencies or problematic features of S.D.’s testimony. Mr. Solivio goes on to argue that the verdict is unreasonable and should be set aside. [ 4 ] In my view, Mr. Solivio’s appeal reduces to the idea that the number of inconsistencies in S.D.’s evidence was so significant that his conviction was unsafe, and, in the alternative, it was an unreasonable verdict.

For the reasons that follow, I conclude Mr. Solivio’s appeal must be dismissed. II. BACKGROUND [ 5 ] At the time of the incident in question, Mr. Solivio and his family resided down the street from S.D. and her family. Mr. Solivio’s teenage daughter, B.S., operated a family child care business in the Solivio home. S.D., her younger brother and one of S.D.’s cousins attended that care facility. B.S. was primarily responsible for S.D.’s care, although Mr. Solivio’s wife and Mr. Solivio himself were often present in the home when the children were present. S.D. referred to Mr.

Solivio as “Uncle” and to his wife as “Auntie”. [ 6 ] In 2018, S.D.’s father took S.D. and her brother to Edmonton for the Canada Day long weekend. Whilst in transit, S.D. abruptly unbuckled her seatbelt, stood up in their van and said, “Daddy, I need to tell you something”. S.D. then disclosed an incident where Mr. Solivio is alleged to have touched her sexually. S.D.’s father described S.D. as being very upset at the time of this disclosure. At trial, S.D. testified about why she told her father of the incident when she did: “Because we were driving to Edmonton. My mom wasn’t there. She had to work.

So I just couldn’t hold it in for that much longer, so I just told him”. [ 7 ] S.D.’s parents reported the allegation to the police on her return from Edmonton. Detective Sergeant Shannon Murray took a video statement from S.D. on July 10, 2018. During the course of this statement, Det. Sgt. Murray asked S.D. to identify various parts of the body on a drawing of a female child. S.D. referred to her genital area as her “kuka”. S.D. told Det. Sgt. Murray that on one occasion when she was at the Solivio home, she went upstairs to Auntie’s bedroom where she lay down on the bed to watch television. S.D. said Mr.

Solivio came into the room shortly thereafter and touched her kuka: unprompted, S.D. then stood up and physically demonstrated to

Det. Sgt. Murray what she alleged Mr. Solivio did to her by rubbing her genital area. S.D. also told Det. Sgt. Murray that the touchingoccurred underneath her underwear and that she had told Mr. Solivio to stop because she did not like what he was doing. [8] S.D.’s video statement was played in court at the commencement of the trial. When it concluded, S.D. was asked if sheremembered talking to the police officer in the video and if she was trying to tell the officer the truth.

S.D. replied affirmatively to bothquestions, and the video was entered as a full exhibit at trial without objection. [9] In the course of S.D.’s direct examination, she confirmed that she usually spent time downstairs at the Solivio home; however,on this occasion, she went upstairs to Auntie’s bedroom to lie on the bed and watch television. According to S.D., she had been in thisbedroom on prior occasions to watch Auntie put on her makeup. S.D. said she recalled watching a show called Monster High. [10] S.D. was cross-examined by Mr. Solivio’s legal counsel at trial.

In response to his questioning, S.D. said she was unsure (a)where B.S. or her brothers were in the Solivio house at the time of the alleged incident, (

b) what time of day the incident happened or howlong she was in the bedroom, (

c) the time of year it had occurred, (

d) what she wore, and (

e) precisely when Mr. Solivio had entered thebedroom. When S.D. appeared confused by the line of questioning pursued under cross-examination, the trial judge adjournedproceedings to give her an opportunity to review the preliminary inquiry transcript with the aid of a Victim Services support person. [11] When cross-examination resumed, S.D. agreed she had provided answers at the trial that differed from those that she had givenat the preliminary inquiry. She agreed that she had forgotten about the alleged offence but remembered it on her trip to Edmonton.

Shesaid she had been watching Monster High in the bedroom but agreed that, at the preliminary inquiry, she had testified that she had notbeen watching television. S.D. was also unsure if her cousin was present in the house at the time of the incident, contrary to what she hadsaid in her direct examination.

She said, “I’m just guessing that, but I don’t really know”. [12] During the Crown’s subsequent re-examination of S.D., the following exchange took place: Q Is Uncle touching you, is that something that you remember for sure or is that something you’re not sure ifyou remember?A Kind of.Q Pardon me?A Kind of.Q Okay. What do you mean by that?A I kind of remember and I kind of don’t.Q Okay.

Is that something that happened or is that something that you guess happened.A Say it again?Q Is that -- is Uncle touching you something that happened for real, or something that you guess happened?A For real. [13] The defence called no evidence. III. THE TRIAL DECISION [14] The trial judge gave an oral decision from the bench several months after trial: R v Solivio (25 June 2020) Saskatoon, CRIM129 of 2019 (Sask QB) [Trial Reasons]. She began her analysis with an overview of the general principles of law applicable to all criminaltrials.

The trial judge next methodically reviewed the evidence of the Crown’s four witnesses. As mentioned, Mr. Solivio did not testify,nor did he call any evidence. [15] Before the trial judge turned to the evidence, she instructed herself on the approach trial judges must take when assessing theevidence of children by reference to R v W.(R.), (SCC), [1992] 2 SCR 122 [W.(R.)], and this Court’s decision in R v R.I.G.,2020 SKCA 26 [R.I.G.].

Having done so, she cautioned herself that, while she must assess S.D.’s evidence in the context of her youth,“using this lens cannot detract from the absolute requirement that the Crown must prove Mr. Solivio’s guilt beyond a reasonable doubt”. [16] The trial judge next turned to S.D.’s video statement and testimony at trial. She found S.D. to be a credible witness for thefollowing reasons: I found [S.D.] to be a credible witness. She answered questions in a matter-of-fact manner that was entirely consistent with what onewould expect from an eight-year-old. She did not exaggerate.

She answered openly and stated without hesitation when she did not know ananswer to a question or forgot. There was no hint in her evidence that would suggest to me that [S.D.] had been prompted or manipulatedto testify in a particular manner. [17] The trial judge recognized that credibility was not, as she put it, a “proxy for reliability” and proceeded to address nineweaknesses or inconsistencies in S.D.’s testimony that had been brought to her attention by Mr. Solivio’s legal counsel.

She alsorecognized what she referred to as “some shifting ground in [S.D.’s] evidence” but, by the same token, took note of S.D.’s youth, thelength of time she had spent on the stand and the difficulty she experienced under cross-examination when the questioning jumped fromthe video statement to the preliminary inquiry testimony and then to her examination-in-chief at trial.

The trial judge once again instructedherself that, although the jurisprudence required her to approach S.D.’s evidence with common sense, “the considerations that I’ve justmentioned [age, time on the stand and confusing cross-examination] cannot trump the absolute requirement that the Crown must prove theessential elements of sexual assault beyond a reasonable doubt”. [18] The trial judge next assessed S.D.’s evidence against the totality of the evidence and asked herself “whether [S.D.] is credibleand reliable on the core elements of the offence”, but she quickly went on to observe that “inconsistencies on peripheral matters do notautomatically lead to a reasonable doubt”.

After doing so, the trial judge concluded by stating, “the inconsistencies or discrepanciespointed to by the defence are in relation to peripheral matters and they do not diminish the overall reliability of her evidence”.

[19] The trial judge scrutinized one final, but significant, point of concern that Mr. Solivio had flagged with respect to S.D.’stestimony on re-examination by Crown counsel, but found it did not undermine the reliability of S.D.’s evidence. She then concluded bystating as follows: I’ve carefully considered [S.D.’s] re-examination testimony against the backdrop of the entirety of the evidence in this trial. Her answer tothe Crown’s questions in re-examination may have given me pause if I considered them in isolation.

However, when I consider the totalityof the evidence, [S.D.’s] initial answer to the question of whether she remembered what happened, “kind of, kind of not,” does not stripaway the reliability of the evidence that goes to the heart of the allegation against Mr. Solivio. This is particularly so when a re-examination culminated and [S.D.] confirming that the assault was something real and not something she guessed happened. In sum, [S.D.’s] testimony that she was sexually touched and that it was Mr.

Solivio who touched her remained unshaken from her videostatement to the end of her testimony at trial. [20] In the end result, the trial judge found Mr. Solivio guilty of the offence as charged by having intentionally touched S.D. in asexual manner by rubbing her genital area when they were in the bedroom. She concluded as follows: I’m also satisfied beyond a reasonable doubt that Mr. Solivio intentionally touched [S.D.] in a sexual manner. [S.D.] testified that herubbed her kuka while they were in the bedroom.

She identified kuka as her vaginal region, both on the drawing that was put to her bySergeant Murray and by physically demonstrating where he touched her by simulating his actions. [S.D.] was unequivocal about thatbeing where Mr. Solivio touched her. IV. THE LAW WITH RESPECT TO THE EVIDENCEOF A CHILD WITNESS [21] The Supreme Court has addressed the question of how courts should approach the evidence of a child witness, beginning withits decision in R v B.(G.), (SCC), [1990] 2 SCR 30 [B.(G.)], and two years later in W.(R.). These decisions represent thecontrolling authorities on the matter.

Speaking to the evolution in thinking on this topic, McLachlin J., as she then was, identified “a newappreciation that it may be wrong to apply adult tests for credibility to the evidence of children” (W.(R.) at 133).

This is because, she said,of the new sensitivities to the peculiar perspectives of children: “Since children may experience the world differently from adults, it ishardly surprising that details important to adults, like time and place, may be missing from their recollection” (at 133). [22] Both B.(G.) and W.(R.) emphasize the need for trial judges to take a common-sense approach when assessing the evidence ofchildren, having regard to the strengths and weaknesses of that evidence in each case.

This means, as said in B.(G.), that a flaw in a child’stestimony “should not be given the same effect as would a similar flaw in the testimony of an adult” because, “[w]hile children may not beable to recount precise details and communicate the when and the where of an event with exactitude, this does not mean that they havemisconceived what happened to them and who did it” (at 55). The full passage reads as follows (at 54–55): [T]he judiciary should take a common-sense approach when dealing with the testimony of young children and not impose the sameexacting standard on them as it does on adults.

However, this is not to say that the courts should not carefully assess the credibility of childwitnesses and I do not read [Wakeling J.A.’s] reasons as suggesting that the standard of proof must be lowered when dealing with childrenas the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be giventhe same effect as a similar flaw in the testimony of an adult.

I think his concern is well founded and his comments entirely appropriate.While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does notmean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude tochildren’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development.

Thecredibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult”is not necessarily appropriate in assessing the credibility of young children.

Of course, as the Supreme Court in B.(G.) pointed out, this change in approach does not translate to a lowering of the standard of proof incriminal matters involving a child witness. [23] The Supreme Court returned to this issue in R v F.(C.C.), (SCC), [1997] 3 SCR 1183, which was a caseinvolving inconsistencies between a child’s viva voce testimony at trial and their prior video-recorded statement.

Although F.(C.C.) dealtprimarily with the admissibility of a video-recorded statement, it was noted that the weight or significance of any inconsistency was amatter for the trial judge to assess: “The fact that the video is contradicted in cross-examination does not necessarily mean that the videois wrong or unreliable.

The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video morereliable than the evidence elicited at trial” (at para 47). [24] F.(C.C.) is also significant for the Supreme Court’s observations about contradictions arising from the confusion a childwitness may experience while under cross-examination. In this regard, although speaking to the issue of admissibility, that court noted asfollows: [48] A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead toinconsistencies in her testimony.

Although the trier of fact must be wary of any evidence which has been contradicted, this is a matterwhich goes to the weight which should be attached to the videotape and not to its admissibility. (Emphasis added) [25] The Alberta Court of Appeal recently grappled with the evidence of a child witness in R v GSO, 2021 ABCA 310 [G.S.O.],where the appellant had argued the verdict was unreasonable because of alleged errors in how the jury had assessed both the credibilityand reliability of the child complainant.

In rejecting that argument, that court underscored the deference afforded to triers of fact becauseof the advantage they have in seeing and hearing the witnesses. It also observed that the complainant in that case was a child both at the

time the assaults took place and when she testified at trial. In addressing some of the specific inconsistencies that were raised on appeal,the Court said this: [6] … the wide range given by the complainant when she was asked to estimate the number of sexual assaults committed on her must beconsidered in the context of her evidence about the appellant leading her to feel that the assaults were normal and that they occurredfrequently over a number of years.

Similarly, the inconsistency about when the last assault occurred may have resulted from confusionregarding the meaning of “last week” in the complainant’s answer, or it may have been the result of a mistaken recollection by either thecomplainant or her mother. Neither of these possibilities precludes the complainant being truthful about the substance of the events thatoccurred.

It is not unreasonable for the jury to believe the substance of the evidence of assault. (Emphasis added) [26] Notable from the reasoning in G.S.O. is how the court specifically referenced the fact that inconsistencies or uncertainty as todetails about time and the number of assaults do not preclude a finding that the complainant was truthful about the substance of the eventsthat had occurred. [27] This Court addressed similar arguments in R.I.G. In that case, the accused sought to undermine the reliability of the two childcomplainants by drawing attention to several inconsistencies in their trial testimony.

The trial judge found the alleged inconsistencies to be“minor and expected” and largely limited to “temporal matters of season and time” (at para 47).

More significantly, though, was the trialjudge’s observation that the cross-examination of the two children was “overly-complex and confusing” (at para 50), which, in the end,left him with little confidence that the witnesses even understood the questions posed by defence counsel in order to properly answer them. [28] On appeal, this Court rejected the offender’s argument that the inconsistencies arising from answers given by the complainantsunder cross-examination should have been given more weight.

The trial judge’s reasons, read as a whole, demonstrated that she was alertto the contradictions and inconsistencies in the evidence but found they did not detract from the core evidence about what had happened tothe two child complainants. In the end, the issue was not whether the complainants could recount the precise details of what happened tothem, because “[w]hile children may not be able to recount precise details and communicate the when and the where of an event withexactitude, it does not mean they misconceived what happened to them …” (at para 58).

The offender’s appeal was dismissed. [29] R v G.S., 2018 ONSC 7251 [G.S.], rev’d 2020 ONCA 317, is also of interest here. The complainant in that case alleged thatG.S., her stepfather, had sexually abused her when she was 7 years old and continued to do so until she was 20. The accused was chargedwith sexual interference, sexual assault and sexual exploitation. He was convicted on the first two charges but acquitted of the sexualexploitation charge because the trial judge found the complainant’s evidence about the events that had occurred from when she wasapproximately 12 to 20 years of age to be unreliable.

Although the appeal was allowed based on the improper use of prior consistentstatements, the appellate court rejected his assertion that the verdict was unreasonable, finding it “a ‘thinly veiled’ invitation to have thiscourt substitute its own credibility assessments for those made by the trial judge” (CA-G.J.S. at para 32, quoting R v Howe (2005), (ON CA), 192 CCC (3d) 480 (Ont CA) at para 47). [30] In R v Waterman, 2021 SCC 5, 453 DLR (4th) 583 [Waterman], the complainant was between 9 and 13 years of age at the timethe offences were alleged to have occurred and would have been in his late 40s or early 50s at the time of the trial.

There were severaldiscrepancies in the complainant’s evidence, including the fact that he had reported a sexual assault to police but later testified at trial thatthe accused had only threatened to commit sexual assault. Other discrepancies included whether the incidents took place in a house or anapartment or in a car or on a motorcycle.

The jury’s conviction on one count of indecent assault and one count of gross indecency wasoverturned by the Newfoundland Court of Appeal: R v Waterman, 2020 NLCA 18, 453 DLR (4th) 586 [CA-Waterman]. [31] On further appeal to the Supreme Court, CA-Waterman was set aside, and the convictions were restored.

Waterman isinstructive in the sense that, even in the face of a large number of inconsistencies, which the Supreme Court described as troubling, thatcourt once again emphasized the advantage enjoyed by the trier of fact – in that case a jury – of being able to see and hear the witnesses: [2] The complainant accepted that his testimony was inconsistent with his prior statements. These inconsistencies were the focus ofvigorous cross-examination, forceful closing submissions and a comprehensive jury charge, which the parties agree was free of errors.

Forhis part, the complainant explained that counselling had helped improve his memory since his initial police statement. In the majority’sview, it was for the jury to decide whether this explanation neutralized any reasonable doubt caused by the inconsistencies. In thesecircumstances, the lens of judicial experience causes us to yield to the wisdom of the jurors who had the advantage of hearing thecomplainant testify.

We decline to second guess this determination. [32] A helpful approach to take when presented with multiple internal and external inconsistencies in the evidence of a child witnessis found in R v R.W.B. (1993), 24 BCAC 1 (vlex), where that Court said as follows: [29] In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between thecomplainant’s evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable.

This isparticularly so when there is no supporting evidence on the central issue, which was the case here. (Emphasis added) [33] Given the factual differences presented by the numerous decisions, it is difficult to draw any firm conclusions other than toemphasize the observation made by the Manitoba Court of Appeal in R v R.G.B., 2012 MBCA 5, 287 CCC (3d) 463 [R.G.B.], where itsaid as follows: “The legal principles created by the Supreme Court of Canada regarding child witnesses are more in the nature of aframework for analysis rather than strict legal rules.

They are intended to inform the judge’s weighing of any evidence given by a childwitness” (at para 35). [34] Apart from that broad direction, there are no bright-line indicators, specific factors or types or number of inconsistencies that

tip the balance one way or the other. Inconsistencies on peripheral matters are less important than inconsistencies involving the substanceof the offence. A trier of fact must consider and evaluate all the internal and external inconsistencies in a child complainant’s evidence inthe context of the totality of the evidence. In doing so, it is for the trier of fact to determine the significance of all and each of theinconsistencies. V. PRELIMINARY POINTS [35] Before addressing Mr.

Solivio’s arguments, I find it useful to begin with three preliminary points for purposes of placing themin a proper appellate context. [36] First, Mr. Solivio takes no issue with the principles of law expressed by the trial judge concerning the assessment of theevidence of a child witness. As I understand his position, Mr. Solivio argues that the trial judge erred in the application of thoseprinciples.

He contends that the trial judge failed to take the required common-sense approach to S.D.’s evidence, incorrectly treated allinconsistencies in her evidence as peripheral matters and, as a result, misapprehended material evidence that played an essential part of herreasoning. In addition, Mr. Solivio asserts that the trial judge erred by dealing with the evidence of S.D.’s re-examination in isolation fromthe remainder of the evidence that bore on her reliability.

He argues that this, too, constituted a misapprehension of the legal principlespertaining to child witnesses, in that she made findings without considering the evidence as a whole. [37] Mr. Solivio also submits that the trial judge failed to give any effect to the inconsistencies and frailties in S.D.’s evidence thatwent to the heart of the allegations. Finally, he asserts that the totality of the evidence was not reasonably capable of supporting aconviction. [38] Of course, these arguments call for consideration of the applicable standards of review.

The submission that the trial judgeerred in the application of the legal principles that govern the assessment of the evidence of children alleges an error of law, which isreviewable on a correctness standard. The assertion that the trial judge found facts that were incompatible with the evidence she did notreject engages the standard of review that applies to an appeal brought pursuant to s. 686(1)(a)(

i) of the Criminal Code, which wassummarized by Deschamps J. in R v R.P., 2012 SCC 22, [2012] 1 SCR 746 [R.P.]: [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 a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected 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, 2007 SCC 5, [2007] 1S.C.R. 190). [39] Mr.

Solivio’s assertion that the totality of the evidence was not reasonably capable of supporting a conviction also alleges anerror of law and is reviewable on the correctness standard.

However, where an appellate court reviews a trial judge’s credibilityassessment to determine if the verdict is unreasonable, the appellate court may not interfere with those assessments “unless it isestablished that they ‘cannot be supported on any reasonable view of the evidence’” (R.P. at para 10, quoting R v Burke, (SCC), [1996] 1 SCR 474 at para 7 [Burke]): also see R v R.D.A., 2015 SKCA 100, 465 Sask R 313, leave to appeal to SCC refused, [R.D.A.]. [40] Absent palpable and overriding error, appellate intervention is not warranted in relation to the credibility findings of a trialjudge.

The same is true where the issue is reliability. An appellate court may not simply substitute its opinion on the credibility orreliability of a witness for that of a trial judge. [41] Second, inconsistencies in a witness’s testimony do not necessarily render a verdict unreasonable: R v François, (SCC), [1994] 2 SCR 827 [François]. That same point was made by this Court in R v Keepness, 2014 SKCA 110, 317 CCC (3d) 267,leave to appeal to SCC refused, : [46] The trial judge was aware of the inconsistencies in the evidence given by the three witnesses.

She did, however, specifically find eachof them to be credible in crucial areas. The trial judge devoted a substantial part of her decision to analyzing, considering and weighingthose inconsistencies. The mere existence of internal inconsistences in the testimony of a witness or inconsistencies between witnesses isnot itself determinative of the credibility of the witness or the accuracy or reliability of their testimony.

Much depends on the nature of theinconsistencies, their relationship to the crucial elements the prosecution has to prove and the presence or absence of confirmatoryevidence of the witnesses’ testimony on crucial issues. Despite the fact that the three witnesses implicating Mr. Keepness in planning andexecuting the robbery did not offer consistent versions about every detail of the planning and execution, nevertheless, all of them clearlyand positively implicated Mr.

Keepness as a party to the planning and execution of the crimes. (Emphasis added) [42] Third, it is for the trier of fact to determine the weight to be assigned to the evidence of a witness generally and to anyinconsistency or flaw in that evidence more particularly: see, for example, François at 836, R v W.H., 2013 SCC 22 at para 32, [2013] 2SCR 180, and R v Leroux, 2015 SKCA 48 at para 38, [2015] 9 WWR 709. Furthermore, it is recognized that, as a matter of law, a trier offact “may accept some of the witness’s evidence while rejecting other parts of it” (François at 837).

Justice Caldwell summarized theseconcepts in R.D.A. and went on to remark as follows about how a trial judge assesses credibility and the deferential stance of a reviewingcourt in relation to such findings: [6] … but, that determination also turns on the demeanour of the witness and the common sense of the trier of fact—matters that are notreadily susceptible to re-assessment by an appellate court: R v François at p. 837.

This does not preclude appellate intervention but, tointervene, the court must be able to find that a trial judge has committed a palpable and overriding error: H.L. v Canada (AttorneyGeneral), 2005 SCC 25, [2005] 1 SCR 401; Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; and R v Gagnon, 2006 SCC 17 at

para 10 , [2006] 1 SCR 621. [ 43 ] Those points made, I turn to Mr. Solivio’s arguments. VI. MISAPPLICATION OF THE LEGAL PRINCIPLES GOVERNING THE EVIDENCE OF A CHILD WITNESS A. No failure to properly assess S.D.’s reliability [ 44 ] Mr. Solivio argues that, although the trial judge recounted the correct law with respect to the assessment of the evidence of a child witness, she failed to take a common-sense approach with S.D.’s evidence, which the controlling legal authorities demand.

More particularly, the trial judge is said to have improperly placed undue emphasis on externalities such as S.D.’s age, the length of time she was on the stand, and the time elapsed between the alleged offence and the trial to explain away what the trial judge termed as S.D.’s shifting evidence. This approach was incorrect, Mr.

Solivio says, because S.D. had demonstrated the ability to recall relatively peripheral matters with ease and had expressed no discomfort about the time she had spent in court and reviewing the transcript that day. [ 45 ] I see no merit to this argument. [ 46 ] As I read the trial judge’s reasons, she did not take a forgiving approach to S.D.’s evidence simply because of these externalities.

When read as a whole, it is clear the trial judge understood that her task was to assess S.D.’s credibility and reliability against the backdrop of the totality of the evidence and, having done so, then ask herself whether S.D. is both credible and reliable on the “core elements of the offence”, while recognizing “that inconsistencies on peripheral matters do not automatically lead to a reasonable doubt”. [ 47 ] In any event, to the extent the trial judge took those three factors into account, I see no error.

She understood that she was to apply a common-sense approach to S.D.’s evidence that, as discussed in B.(G.) and W.(R.) , takes into consideration the peculiar perspectives of children. Details like time and place may be missing. It is also evident from the trial judge’s reasons that she understood a common-sense approach was intended to be no more than a broad framework, unbounded by specific constraints or any hard and fast rules. As noted above, the same point was made in R.G.B.

S.D.’s age was a highly relevant factor, as was the time that had elapsed between the date of the incident and the date of the trial. [ 48 ] There is also case law that supports the idea that a trial judge may take into account the length of time a youth spends on the stand as an aspect of the required common-sense approach.

For example, in R v C.L.J. , 2011 ABCA 176 at para 17 , 48 Alta LR (5th) 395, the court there found the inconsistency in the child witness’s evidence was attributable to the fact that “by the time [the impugned] questions were posed, the complainant had become uncomfortable with counsel’s questioning” (at para 17): see also R.I.G . at para 67 . [ 49 ] The length of time a child witness spends on the stand may also be a relevant consideration in assessing their demeanour and ability to understand the questions put to them in cross-examination: see R.I.G . at paras 51–53 .

In R v Ceal , 2012 BCCA 19 , 315 BCAC 138, the appellant took issue with the trial judge’s determination that the complainant was exhausted by the end of the cross-examination to the point of finding it easier to just agree with defence counsel rather than take issue with what was suggested. That argument was rejected on appeal: [47] The appellant submits that there was no evidence to support the trial judge’s statement … that after two-and-a-half days on the witness stand C.W. was exhausted and found it easier to simply agree with defence counsel’s suggestions rather than dispute them. I do not agree.

The trial judge was in the best position to observe the effect on C.W. of a lengthy cross-examination on events of a sexual nature that had occurred on numerous occasions over a seven-year period when C.W. was still a child. This observation might not be one that is evident from “[a] lifeless transcript of the testimony” ( Howe at para. 46 ), but would be made based on a witness’s “responses to questions, including the tone of his voice, the look on his face, and any hesitation he had in answering the questions” ( McLean [2010 BCCA 341] at para. 51).

This is the manner in which trial judges assess a witness’s demeanor and falls uniquely within their area of expertise . (Emphasis added) [ 50 ] Although the issue in Ceal was whether there was any evidence for the trial judge to have made a finding about the complainant’s exhaustion, the case is significant for recognizing that mental or physical exhaustion may play a role in assessing both demeanor and credibility. It is a factor that may be given more or less weight.

Ultimately, it is the trial judge who is best positioned to gauge the way in which spending an extended period of time on the witness stand testifying to difficult and often traumatic events may affect the quality of the child’s evidence. [1] [ 51 ] The transcript lends some support to the trial judge’s observation. After a period of cross-examination, it became clear to the trial judge that S.D. was confused by the way defence counsel had repeatedly jumped from the video-recorded statement to the preliminary inquiry transcript and then to S.D.’s trial evidence, which caused her to provide one-word answers.

This led the trial judge to remark, “there was a few places where I think she was answering what she remembers now, as opposed to [how] she remembers being asked that question”. As a result, the trial judge directed an extended lunch break to allow S.D. time to refresh herself on the transcript of her testimony at the preliminary inquiry. Cross-examination of S.D. continued after lunch for another hour.

In total, S.D. was on the stand from 10:30 a.m. until 3:00 p.m.: a period of time that caused the trial judge to observe, “Although there was a lunch break and a mid- morning and mid-afternoon break, that is a long day for an eight-year-old. She spent 45 minutes watching the interview”. B. No misapprehension of the evidence [ 52 ] Mr. Solivio next argues that the flaws in the trial judge’s analysis of S.D.’s evidence resulted in a misapprehension of material

evidence and, therefore, affected the reasonableness of the verdict. Breaking that argument down, he points to the trial judge’smischaracterization of two of nine inconsistencies in S.D.’s evidence as being peripheral when they were matters that went directly to herallegation of improper touching. He also argues that the trial judge mischaracterized some inconsistencies as a failure to remember, in partdue to a reliance on the external factors noted above. He claims the trial judge misapprehended the evidence by narrowing her focus tocertain inconsistencies and failing to assess them collectively.

As he put it in his written material, “By isolating evidence of thecomplainant that diminished reliability and went to the core of the allegation, the trial judge misapprehended the evidence before her”.Even though some of the inconsistencies were incidental and minor on their own, taken together, Mr. Solivio argues, they should havegiven rise to a reasonable doubt. Put another way, he says, the trial judge should have looked to the totality of the inconsistencies in orderto assess whether S.D.’s evidence was reliable. [53] On an appeal against conviction, an appellate court may, pursuant to s. 686(1)(a)(

i) of the Criminal Code, allow the appealwhere the verdict is “unreasonable or cannot be supported by the evidence”. There is a difference between a question of whether theverdict is unreasonable and one where a misapprehension of the evidence is asserted: “Where the appeal is based on the ‘strength of theoverall case’ and not on any particular finding of fact or credibility, the appellant must establish that the verdict was unreasonable”(emphasis in original, E.G.

Ewaschuk, Criminal Pleadings and Practice in Canada, loose-leaf (Rel No 2022-1, Sept 2022) 3d ed(Toronto: Thomson Reuters, 2022) at §23:180 [Criminal Pleadings]) – such is the situation where the trial judge is alleged to have failedto give proper effect to the evidence: see R v Lee, 2010 ABCA 1, 251 CCC (3d) 346 [Lee]. In contrast, where the grounds of appealchallenge a discrete finding of fact, which is said to be unsupported by the evidence, the misapprehension must play an essential

part inthe reasoning process that resulted in conviction. [54] A misapprehension can refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of theevidence, or a failure to give proper effect to the evidence. Misapprehension of the evidence engages the following point made by DohertyJ.A. in R v Morrissey (1995), (ON CA), 80 OAC 161 (vlex) (CA): [89] In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review ofthe evidence adduced at trial: R. v.

Burns, [(1994), (SCC), 89 CCC(3d) 193 (SCC)], at pp. 198–199 C.C.C. This court’sauthority to declare a conviction unreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in theproceedings below. The verdict is the error where s. 686(1)(a)(

i) is properly invoked. A misapprehension of the evidence does not render averdict unreasonable. Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict isunreasonable. In cases tried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominentlyin an argument that the resulting verdict was unreasonable. An appellant will be in a much better position to demonstrate theunreasonableness of a verdict if the appellant can demonstrate that the trial judge misapprehended significant evidence: R. v.

Burns,supra, at p. 200 C.C.C. [55] Similarly, in R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3, Fish J. (dissenting, but not on this point) discussed the connectionbetween a misapprehension of the evidence and a finding of unreasonableness: [12] … a verdict based on an erroneous understanding of the evidence with regard to a material matter cannot support a finding of guilt.As mentioned earlier, I agree as well that this sort of misapprehension of the evidence may well render the verdict at trial “unreasonable”within the meaning of s. 686(1)(a)(

i) of the Criminal Code. [13] In R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. explained thatmisapprehensions of the evidence include not only a mistake as to the substance of the evidence, but also “a failure to consider evidencerelevant to a material issue” and “a failure to give proper effect to evidence” (p. 218). I agree with Justice Doherty that “[i]n cases triedwithout juries, a finding that the trial judge did misapprehend the evidence can … figure prominently in an argument that the resultingverdict was unreasonable” (p. 220). [56] A misapprehension of the evidence is not synonymous with a different

interpretation of the evidence by an appellate court thanthe trial judge. An appellate court must take a deferential stance with regard to findings of fact in recognition of the privileged position ofthe trier of fact. Furthermore, as the Supreme Court noted in R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190, “the question whether a verdictis unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trialbeen interpreted differently” (at para 62).

This caution is especially important when the issue on appeal involves a trial judge’s credibilityassessment. When a verdict rests on credibility – as it does in this case – appellate powers of intervention under s. 686(1)(a)(

i) should beexercised sparingly and intervention on this basis is rare: see Beaudry at para 63, Burke at paras 5–7, and Criminal Pleadings at §23:177. [57] The inconsistencies Mr. Solivio refers to – identified by the trial judge as (8) and (9) – were described in the Trial Reasons inthis way: ([Inconsistency] 8) [S.D.] wasn’t entirely clear in her evidence about the alleged touching itself. In her video statement, [S.D.] was askedwho had seen her kuka, and she said her grandma and grandpa, and one time her older cousin. She did not mention Mr. Solivio.

WhenSergeant Murray asked her who has touched her kuka, [S.D.] originally answered nobody. But then later in her statement, S.D. said thatUncle touched her kuka and physically demonstrated that it was her vaginal region and said that he touched her under her undies. ([Inconsistency] 9) The ninth point was that [S.D.] couldn’t say how many times it had happened. In the video statement, [S.D.] stated,“maybe it was a few times, maybe no”. [58] Mr. Solivio maintains these inconsistencies were not peripheral, as so found by the trial judge, but central to her reasoningprocess about S.D.’s reliability.

As such, he says, they amounted to a misapprehension of the evidence, yet the following passage from thetrial judge’s reasons reveals how she had downplayed the significance of them: The fact that [S.D.] couldn’t remember what she was wearing, what [B.S.] was doing at the time the assault occurred, how long she was inthe bedroom, for example, does not assail her substantive evidence in relation to the essential elements of the offence charged. And that’sthat she was touched in a sexual manner, and she was touched by Mr. Solivio.

[ 59 ] With respect, I do not share Mr. Solivio’s position that the trial judge misunderstood the substance of the noted inconsistencies. The trial judge clearly grasped his position, i.e., that those inconsistencies, together with the others he had identified (inconsistencies 1 to 7), cumulatively undermined the reliability of S.D.’s evidence. I am also satisfied the trial judge was aware of S.D.’s testimony in connection with each of those inconsistencies. Rather, as I see it, the error Mr.

Solivio advances is that the trial judge diminished the import or weight attached to inconsistencies (8) and (9) by characterizing them as peripheral to the touching allegation. Viewed in this context, Mr. Solivio’s argument reduces to an assertion that the trial judge failed to accept his

interpretation of the evidence or, more to the point, weigh it in the way he had suggested. However, as discussed above, whether a verdict is unreasonable is not the same thing as whether a different verdict would have been reasonable had the trial judge interpreted the evidence differently. [ 60 ] Furthermore, even if I accept that the alleged misapprehension went to substance and not weight, I am not convinced that the alleged errors played an essential

part in the reasoning process that resulted in Mr. Solivio’s conviction. Inconsistency (8) refers to an exchange between S.D. and Det. Sgt. Murray in S.D.’s video-recorded statement. In the context of talking about body parts, S.D. was asked who had seen her kuka, to which she responded, her grandparents and possibly a cousin. When Det. Sgt. Murray then asked S.D. who had touched her kuka, she responded, “Nobody”.

However, S.D.’s answer flowed directly on the heels of a discussion about her European relatives and why she referred to her genital area as her kuka. [ 61 ] Inconsistency (9) arises from when S.D. told Det. Sgt. Murray that the touching incident she had described was “probably the first time”. Detective Sgt. Murray probed her about whether it had happened more than once, to which S.D. replied, “Maybe it was a few times maybe no”. While S.D. may have been uncertain about how many occasions the touching had occurred, she was not uncertain of the fact that it did occur. [ 62 ] S.D.’s responses to Det. Sgt.

Murray’s questions must also be considered in context. At the commencement of the police video, in answer to Det. Sgt. Murray’s question about why she was there, S.D. said, “To talk what that man did”, and when asked by Det. Sgt. Murray to explain what had happened S.D. responded, “So um, me and (inaudible) use to go to this old daycare and then this girl was her aunt who we saw at work well she wasn’t really her aunty but we use to call her aunty and then her husband is the who did it”. Following this exchange, S.D. stood up and physically demonstrated to Det. Sgt. Murray what she said Mr.

Solivio had done to her by touching her own genital area. As mentioned, later in her video statement, S.D. was asked a series of questions about body parts and was shown a drawing depicting body parts at the same time and responded, “Nobody” had touched her kuka in that exchange. But, shortly thereafter, S.D. once again stood up and rubbed her genital area to demonstrate to Det. Sgt. Murray what she said Mr. Solivio had done to her.

S.D.’s actions were spontaneous and clearly captured on the video. [ 63 ] While the trial judge mistakenly characterized inconsistencies (8) and (9) as being peripheral in nature, she was aware of all of the inconsistencies Mr. Solivio had drawn to her attention in his closing submissions said to undermine the reliability of S.D.’s testimony. The trial judge understood that she had to assess S.D.’s testimony against the totality of the evidence; and, in this regard, the above passage from the reasons that Mr.

Solivio finds damning must be read in light of what she said thereafter: At the end of the day, what I must ask myself is whether [S.D.’s] evidence is credible and reliable against the backdrop of the totality of the evidence. I must ask whether she is credible and reliable on the core elements of the offence and recognize that inconsistencies on peripheral matters do not automatically lead to a reasonable doubt. I’ve already stated that I consider [S.D.] to be an entirely credible witness.

In addition, considering the evidence as a whole, I’ve concluded that the inconsistencies or discrepancies pointed to by the defence are in relation to peripheral matters and they do not diminish the overall reliability of her evidence. [ 64 ] Neither do I find Mr. Solivio’s other arguments persuasive. For instance, as Mr. Solivio notes in his factum, S.D. was able to recall information with ease that was unrelated to the specific allegation, such as “where she was babysat, who babysat her, what the layout of the house was like, and who the bedrooms belonged to”.

He says the trial judge failed to consider the inconsistencies in S.D.’s evidence against the backdrop of her seeming ability to recall this sort of information. [ 65 ] It is hardly unsurprising that, given her age, S.D. would be able to recall details about the house and the babysitting situation at which she attended frequently over an extended period, but not the specific circumstances of one date in question that occurred several years before. [ 66 ] Neither am I persuaded that the trial judge was unaware of or failed to consider Mr.

Solivio’s argument about the differences and seeming inconsistencies between what S.D. said at the preliminary inquiry, in her video-recorded statement and in her testimony at trial. In fact, the trial judge commented directly on this point by framing Mr. Solivio’s argument in this way: “Defence counsel contends that cumulatively, these discrepancies and inconsistencies in [S.D.’s] evidence from her video statement to the preliminary inquiry through to her evidence at trial demonstrate how susceptible to change her memory is, and that her evidence cannot be relied upon”.

The trial judge was alert to “some shifting ground in [S.D.’s] evidence” yet found it did not undermine her assessment of S.D.’s reliability, having regard to the fact that the alleged offence occurred three years prior to trial when S.D. was only 5 or 6 years of age, the length of time she spent on the witness stand and the confusing nature of the cross-examination. As discussed above, those were appropriate matters for the trial judge to have considered in assessing Mr. Solivio’s argument. [ 67 ] Finally, the manner in which S.D. reported what had happened to her was relevant.

According to her father’s unchallenged evidence, S.D. made an extemporaneous, unprompted outburst in the family vehicle on the way to Edmonton. While his testimony did not corroborate S.D.’s allegation, it provided some context in which the trial judge could assess S.D.’s credibility and reliability. [ 68 ] To conclude, it was the obligation of the trial judge to assess and weigh all of the trial evidence and to determine if the inconsistencies in S.D.’s evidence were so prevalent and serious enough to undermine the confidence she had in her reliability.

While those inconsistencies could have cast doubt on the trial judge’s assessment, it was for her to weigh their significance. The fact that she weighed the evidence in a manner that Mr. Solivio disagrees with is not an error of law that can give rise to appellate intervention. C. No isolated, piecemeal approach to reliability

[ 69 ] After having dealt with the nine inconsistencies in S.D.’s evidence, which were identified by Mr. Solivio’s counsel, the trial judge found S.D. to be a reliable witness. Mr. Solivio attacks that finding on the basis that the trial judge went on to consider – as a separate and distinct matter – whether S.D.’s testimony on re-examination should have undermined her earlier conclusion.

As quoted above in paragraph 12, in re-examination the Crown posed the following question to S.D.: “Is Uncle touching you, is that something that you remember for sure or is that something you’re not sure if you remember?” to which S.D. replied, “Kind of”. When asked to clarify her response, S.D. said, “I kind of remember and I kind of don’t” but then confirmed that the touching was “for real”. [ 70 ] Mr. Solivio contends S.D.’s re-examination evidence further, and quite significantly, undermined the reliability of her testimony because it went to the core of the sexual touching allegation.

Moreover, by assessing the impact of this evidence after having found S.D. to be both credible and reliable, that is, by considering S.D.’s re-examination evidence separately, he says, the trial judge approached the issue in a piecemeal fashion. Had the trial judge considered the nine inconsistencies together with S.D.’s re-examination evidence, he says, she would have found S.D.’s evidence unreliable; or, at least, it would have given rise to a reasonable doubt. In this respect, I understand Mr.

Solivio to argue that the trial judge erred in law by failing to consider S.D.’s evidence in its entirety in assessing her reliability. [ 71 ] I am not persuaded by this argument. [ 72 ] A trial judge’s reasons must be read as a whole and in the context of the evidence and the submissions of counsel. Read in that fashion, I do not find the trial judge’s reasons support the argument advanced by Mr. Solivio. In the context of assessing S.D.’s reliability, on two separate occasions the trial judge expressly stated that she was required to consider the evidence in its totality.

She first made that point following her discussion about the nine inconsistencies raised by defence counsel that were said to undermine the reliability of S.D.’s evidence (repeated here for clarity): At the end of the day, what I must ask myself is whether [S.D.’s] evidence is credible and reliable against the backdrop of the totality of the evidence.

I must ask whether she is credible and reliable on the core elements of the offence and recognize that inconsistencies on peripheral matters do not automatically lead to a reasonable doubt. (Emphasis added) [ 73 ] The trial judge then turned to the significance of S.D.’s re-examination testimony and re-instructed herself on the need to examine the entirety and the totality of the evidence, wholistically, in making her assessment about S.D.’s reliability (again, repeated for clarity): I’ve carefully considered [S.D.’s] re-examination testimony against the backdrop of the entirety of the evidence in this trial .

Her answer to the Crown’s questions in re-examination may have given me pause if I considered them in isolation. However, when I consider the totality of the evidence, [S.D.’s] initial answer to the question of whether she remembered what happened, “kind of, kind of not,” does not strip away the reliability of the evidence that goes to the heart of the allegation against Mr. Solivio. This is particularly so when a re- examination culminated and [S.D.] confirming that the assault was something real and not something she guessed happened. (Emphasis added) [ 74 ] I see no error in the trial judge’s approach.

She understood that she had to consider S.D.’s re-examination evidence against the backdrop of the entirety of the trial evidence, just as she had to examine the other evidence, together with the re-examination evidence. Not only did she say that was what she was doing, her reasons indicate that she in fact conducted that type of review. The sequence in which the trial judge dealt with the re-examination evidence does not undermine my confidence that she did so. For Mr. Solivio to argue the trial judge failed to do so, despite this self-instruction, is to suggest that she gave lip service to it.

I reject that line of thinking. [ 75 ] As I see it, this ground of appeal is an indirect attack on the credibility and reliability findings made by the trial judge and amounts to an invitation for this Court to go behind those findings and substitute our own

interpretation of the evidence. We are not entitled to take that approach. The trial judge did not err in her treatment of the discrepancies and inconsistencies in S.D.’s evidence, nor were the reliability findings made in an isolated, piecemeal fashion. This argument must, therefore, be rejected. VII. UNREASONABLE VERDICT [ 76 ] Mr. Solivio recycles much of the same arguments he made in his first ground of appeal under the rubric of an unreasonable verdict. He suggests the trial judge’s flawed approach to the treatment of S.D.’s evidence resulted in a verdict that is not supported by the evidence at trial. Mr.

Solivio once again points to the series of inconsistencies in S.D.’s testimony, which, he says, were collectively significant and should have caused the trial judge to have had a reasonable doubt about his guilt. In support of this argument, Mr. Solivio refers to several decisions on sexual assault charges from other jurisdictions where the accused was acquitted. [ 77 ] Where an appellant attacks the strength of the overall case, as opposed to findings of fact or credibility, the appellant must establish that the verdict is unreasonable.

As discussed above, to assess that question, an appellate court must determine if “the verdict is one that a properly instructed jury or judge could reasonably have rendered” ( R.P. at para 10 ): see also Biniaris at para 36 , and R v C.P ., 2021 SCC 19 at para 28 , 457 DLR (4th) 553.

Although the Biniaris analysis requires an appellate court to review the evidence, it is not an open invitation for that court to simply take a different view of the evidence than the trier of fact: “If a conviction is possible on the record, it is not sufficient that a different trier of fact might have acquitted” ( Lee at para 7 ) – nor is a “lurking doubt” as to the guilt of an accused a sufficient foundation to meet the test, absent a proper basis upon which to interfere. [ 78 ] While the test for an unreasonable verdict also pertains to credibility and reliability findings, as the Supreme Court observed, “in applying the test the court of appeal should show great deference to findings of credibility made at trial” ( W.(R.) at 131): see also G.S.O. at para 4 .

As noted above, an appellate court may not interfere with a trial judge’s assessment of credibility, “unless they cannot be supported on any reasonable view of the evidence …” ( C.P . at para 30 ): see also R.P. at para 10, Burke at para 7, and R.D.A . at para 5 . Trial judges are accorded significant deference with regard to credibility findings . This point applies equally to reliability findings: “A

finding of reliability by a trial judge, like a finding of credibility, is a finding of fact that attracts significant deference by a reviewing court …” ( R v Kishayinew , 2019 SKCA 127 at para 57 , 451 DLR (4th) 430, rev’d on other grounds, 2020 SCC 34 ). [ 79 ] Finally, as the Supreme Court has often observed, “[a]ssessing credibility is not a science”, and, in the absence of a palpable and overriding error, those “perceptions [of the trial judge] must be respected” ( Gagnon at para 20 ).

Because of the varying standards of appellate review, “[c]are must be taken to distinguish between a challenge to a trial judge’s factual determination and a challenge to the reasonableness of the verdict” ( R v John , 2021 SKCA 83 at para 63 , 405 CCC (3d) 184). [ 80 ] While Mr. Solivio’s counsel skillfully drew attention to perceived inconsistencies in S.D.’s evidence, with a focus on how the trial judge handled them in the assessment of S.D.’s reliability, I find no reversible error. There was sufficient evidence adduced at trial to support his conviction. [ 81 ] Again, as I see it, Mr.

Solivio’s argument attacks the trial judge’s assessment of S.D.’s credibility and reliability and asks this Court to interpret the evidence differently. Although an appellate court must re-examine and reweigh the evidence to some extent, it may not substitute itself for the trier of fact or remake the decision afresh. As discussed more fully above, I see no flaw in the trial judge’s appreciation of the law or in her application of the law to the facts. She did not misunderstand the evidence. She simply saw it differently than Mr. Solivio does.

That alone does not make the verdict unreasonable. [ 82 ] Much was made by Mr. Solivio about the alleged inconsistencies and problems with S.D.’s testimony. As discussed above, there were several inconsistencies and inaccuracies, but the trial judge was alert to all of them. She addressed each of them and provided reasons for why she did not find them individually or collectively sufficient to raise a reasonable doubt.

She found the inconsistencies in S.D.’s evidence to be expected given her youth, the time elapsed between the date of the offence and the trial, and the lengthy and often confusing cross-examination. But, more importantly, she found none of them detracted from S.D.’s credibility or reliability on the core allegation: whether Mr. Solivio had touched her in a sexual way.

It was up to the trial judge, as the trier of fact, to consider S.D.’s evidence and make appropriate findings of fact. [ 83 ] The trial judge was obliged to weigh all of the evidence, and, once she had done so, it was open to her to accept S.D.’s account of the sexual touching. The trial judge was alert to the internal inconsistencies in S.D.’s evidence. Based on the findings of fact and the record, I am satisfied that the guilty verdict is one that a properly instructed trier of fact could reasonably have reached. Mr.

Solivio has not persuaded me that the findings of fact essential to the verdict of guilt cannot be supported by any reasonable view of the evidence. VIII. CONCLUSION [ 84 ] For the reasons set out above, Mr. Solivio’s appeal must be dismissed. “Schwann J.A.” Schwann J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.