R v Jolibois, 2022 SKCA 120

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with s. 486.4(1) of the Criminal Code directing that any information identifying the underaged complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3538 Citation: R v Jolibois , 2022 SKCA 120 Date: 2022-10-20 Between: Gilles Brian Jolibois Appellant And His Majesty the King Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Leurer On appeal from: Saskatchewan Provincial Court, La Loche Appeal heard: September 16, 2022 Counsel: Thomas Hynes for the Appellant Kelly Kaip for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] Gilles Jolibois was convicted of committing sexual interference against a 14-year-old complainant. On appeal, he argues that the trial judge erred by reversing the burden of proof, shifting the onus to him, and requiring him to adduce evidence of a motive to fabricate on the part of the complainant.

He also asserts that the trial judge failed to provide sufficient reasons. [ 2 ] For the reasons that follow, the appeal is dismissed. II. BACKGROUND [ 3 ] On October 31, 2020, the complainant, D.J., went trick-or-treating with C.S., who was her friend. Afterwards, they went to C.S.’s home where D.J. had arranged to have a sleepover. C.S.’s grandmother, mother, stepfather (Mr. Jolibois), a foster child, and one other person also lived at the house. D.J. was 14 years old at the time. C.S. was 13 years old. [ 4 ] Mr. Jolibois and C.S.’s mother went out for the evening after the girls returned to the home.

D.J. and C.S. went to a basement bedroom, where they shared a double bed. D.J. stayed awake until about 2:00 a.m. and then slept until 10:00 a.m. After she awoke, D.J. stayed in bed and played some games on her phone while C.S. continued to sleep. At approximately 11:30 a.m., D.J.’s mother texted her and asked her if she was ready to be picked up. D.J. replied that she was still in bed and did not want a ride for a while. What occurred next is contested. [ 5 ] D.J. alleged that shortly after the text exchange, Mr. Jolibois came into C.S.’s bedroom, lay across her (D.J.’

s) legs, attempted to pull her pants down, and touched her vagina over her clothes. D.J. pushed his hands away several times, but he persisted. She momentarily froze. D.J. managed to pull her legs out from under Mr. Jolibois and get off the bed, to which, she said, he reacted angrily and told her to get back on the bed. Instead, D.J. told him she was leaving, gathered her belongings, and went upstairs. She stated that Mr. Jolibois lay down on the bed and went to sleep as she left.

D.J. went upstairs, sat with C.S.’s grandmother, and texted her mother to come pick her up. [ 6 ] When her mother arrived, D.J. went outside and immediately told her mother what she alleged had occurred in the basement bedroom. D.J.’s mother stormed into the house and demanded to know the location of Mr. Jolibois. After being told by C.S.’s grandmother that he was in the basement, she went downstairs where she found Mr. Jolibois and C.S.’s mother asleep in a different bedroom than the one that D.J. and C.S. had shared. D.J.’s mother angrily confronted Mr. Jolibois about the allegations.

He told her that he had never gotten out of his bed. At C.S.’s grandmother’s urging, D.J.’s mother left the house. [ 7 ] D.J.’s mother immediately phoned the police who attended the home and arrested Mr. Jolibois. D.J. provided a video- recorded statement a few hours later and described the events set out above. Mr. Jolibois was charged with sexual interference (s. 151) and sexual assault (s. 271). He pleaded not guilty, and the matter proceeded to trial in the Provincial Court.

[ 8 ] Mr. Jolibois contends that he never entered C.S.’s bedroom where the girls were located and that he never touched D.J. III. TRIAL [ 9 ] At trial, the Crown presented D.J., her mother, and C.S. as witnesses. D.J.’s video-recorded statement was admitted into evidence pursuant to s. 715.1 of the Criminal Code . Mr. Jolibois testified on his own behalf and also called C.S.’s grandmother as a witness. [ 10 ] D.J. and her mother testified to the events described above, with additional details. D.J. testified that Mr.

Jolibois talked “the way drunk people talk” during the time he was in the bedroom. [ 11 ] C.S.’s evidence conformed with D.J.’s up to the point where they went to sleep. She testified that she remained sleeping until after D.J. had left the bedroom in the morning. C.S. stated that she did not see, hear, or feel any of the events described by D.J., and, when she awoke, she was alone in the bed. She heard D.J.’s mother in the basement a few minutes after she woke up. [ 12 ] Mr. Jolibois testified that he and C.S.’s mother went out around 11:00 p.m. on the night in question.

After going to a bar, they attended several parties and drove around. He estimated that they arrived home around 9:50 a.m. Mr. Jolibois described getting some food, using the bathroom, doing a few other small tasks, and then going to sleep in a basement bedroom with C.S.’s mother. He denied going into the bedroom that was occupied by C.S. and D.J. and denied touching D.J. Mr. Jolibois testified that he did not interact at all with D.J., and, while he had seen her in the home the night before, he did not know that she was spending the night and had not seen her after he arrived home that morning.

He stated that he fell asleep around 10:30 a.m. and was awakened by D.J.’s mother screaming at him and attacking him. [ 13 ] When questioned about his level of intoxication at the point that he arrived home, Mr. Jolibois testified that he was about a 4 out of 10, indicating that he had a buzz but was not “intoxicated intoxicated”. He asserted that his level of sobriety on that date was the same as when he was testifying in court. [ 14 ] C.S.’s grandmother testified that she woke up around 8:00 or 9:00 a.m. and noted that the house was quiet. She described Mr.

Jolibois, when he arrived home later that morning, as “They were drinking. He wasn’t sober”, but “He wasn’t that drunk”. She indicated that she went up and down the basement stairs three or four times to check on the young foster child and did not observe or hear any activity. She further testified that D.J. followed her upstairs and that she seemed normal. She sat on the couch with D.J. for 15 minutes before D.J.’s mother arrived. Shortly after D.J. left, D.J.’s mother burst into the home. [ 15 ] The trial was adjourned after the completion of counsel’s submissions, and the decision was reserved.

An oral judgment was issued two months later: R v Jolibois (20 January 2022) La Loche, Provincial Court (Sask) [ Trial Decision ]. After setting out the charges and summarizing the allegations, the trial judge noted that date, place, and identity were not contested. He described the question that confronted him as, “Now, the issue is whether the Crown has proved the allegations of sexual touching and sexual assault beyond a reasonable doubt”. He then reviewed the important portions of the evidence of each witness.

The remainder of his analysis consisted of the following: With respect to the analysis of the evidence of timing of the complainant and -- claimant -- complainant and her mother’s text to each other are extremely important for the analysis of the evidence. Except for noting the time on her phone when she woke up, the complainant says that the time of day were estimates. The same is true of the accused, and [C.S.’s grandmother’s] evidence as for the time of day. However, the complainant’s mother testified to precise times when she both sent and received text messages from her daughter.

At 11:32, the complainant replied “later” to the question of being picked up. Forty minutes passed until she sent the text to her mother asking to be picked up, and that was at 11 -- 12:18 PM. Some of that time would have been taken up by her walking up the stairs, seated at the table, texting her mother. Even if that took five or ten minutes -- five minutes, that still leaves 35 minutes in which an assault could have taken place. The credibility of witnesses is always an issue.

I have no doubt about the truthfulness of [D.J.’s mother’s] evidence, which is very clear and to the point, nor do I have any doubt about the truthfulness of the complainant’s testimony. She was clear and fairly precise. Her credibility is bolstered by her advising her mother of the assault, and by her giving her statement to the RCMP a very short time after the event. She said that she froze when the assault was occurring, which is understandable, and in no way reduces her credibility. [C.S.’s grandmother] says she seems normal, which is also understandable.

The Court no longer requires a … cry from sexual assault complainants, nor does the law require a complainant to complain of the assault to the first possible person she encounters after the event. I can find no reason to disbelieve or doubt the complainant’s evidence. I can see nothing in the evidence that suggests that she’s making this all up, or that she is mistaken. I believed some of the accused’s evidence, but not his evidence as to his sobriety or denial of the assault.

The complainant said that the accused spoke the way drug [ sic ] people talk. [C.S.’s grandmother] said that he wasn’t sober, but not that drunk. These are not descriptions of a sober person. He was testifying in court as the accused would have had the court believe. His denial of the assault is not aided by [C.S.’s] evidence on -- or that of [C.S.’s grandmother]. Perhaps [C.S.] is a -- a remarkably solid sleeper, but I find it is more likely that she kept her eyes closed and pretended to sleep.

I did not believe her on this point. [C.S.’s grandmother] heard no -- no commotion from [the] basement because the complainant froze, and there’s no evidence that the accused shouted or spoke in a loud voice demanding that she get back into bed. She said that he was angry with her and spoke in an angry voice. The accused’s evidence is not believed, nor does it raise a reasonable doubt as to his guilt. No reasonable doubt exists on all of the evidence before the Court. I, thereby, find the accused guilty of both counts on the Information.

[16] A judicial stay was entered on the charge of sexual assault, pursuant to R v Kienapple, (SCC), [1975] 1 SCR729. Mr. Jolibois was sentenced to 12 months of incarceration, followed by 12 months of probation. The usual ancillary orders weregranted. IV. ISSUES [17] The issues in this matter are as follows: (

a) Did the trial judge err by reversing the burden of proof, shifting the onus to the accused, or by requiring evidence of a motiveto fabricate on the part of the complainant? (

b) Did the trial judge fail to provide sufficient reasons? V. ANALYSIS A. Burden of proof, onus, and evidence of motive to fabricate [18] Mr. Jolibois argues that the trial judge subtly shifted the burden of proof to him. First, he submits that the trial judge requiredhim to explain away the allegations against him and prove his innocence instead of the Crown being required to prove his guilt.Mr. Jolibois says that he was expected to provide evidence of a motive to fabricate on the part of D.J. in order to avoid conviction.

Thesearguments are rooted in the statement by the trial judge that he could “find no reason to disbelieve or doubt the complainant’s evidence. Ican see nothing in the evidence that suggests that she’s making this all up, or that she is mistaken”. [19] In conjunction with this assertion, Mr. Jolibois contends that the trial judge failed to factor in C.S.’s testimony when assessingD.J.’s evidence and, by neglecting to do so, did not ground his credibility findings on the whole of the evidence. These two contentionsform the basis of Mr.

Jolibois’s argument that the trial judge erred in law by reversing the burden of proof. [20] With regard to the first branch of Mr. Jolibois’s challenge under this ground of appeal, the Crown asserts that the reasons veryclearly disclose that the trial judge was not making a finding of a lack of motivation to lie by D.J. and then looking to Mr. Jolibois todisprove the allegations. It contends that single passage in the Trial Decision, regarding fabrication, was merely a common-sensecomment on credibility, not a shifting of the burden of proof. For the second portion of Mr.

Jolibois’s argument, the Crown points out thatfinding a witness to be credible does not shift the burden of proof. It submits that no particular order is required for the examination ofeach witness’s testimony and that the credibility assessment of D.J. was properly done and was well-grounded in the evidence, includingthat of C.S. [21] Mr. Jolibois is correct when he says that he did not argue at trial that D.J. had a motivation to lie. There was no suggestion bydefence counsel that there was any animosity between Mr. Jolibois and D.J. or that she had a reason to make up a spurious allegation.

As aresult, according to Mr. Jolibois’s argument, it was an error of law for the trial judge to raise the issue of fabrication. He submits that thisstatement by the trial judge represented a call for further evidence on his part to explain why D.J. would testify as she did.

After assessingthis argument, I do not accept that the trial judge committed this alleged error. [22] A trial judge’s examination of the motivation for a complainant to fabricate usually finds its genesis in a defence assertion thatthere is hostility between the complainant and the accused or that a complainant has a motive to make up allegations for other ulteriorpurposes. As such, the cases generally approach the issue from this angle.

Nevertheless, that jurisprudence assists in framing the analysis. [23] In R v W.D.M., 2022 SKCA 64, [2022] 9 WWR 606, leave to appeal to SCC requested, 40345 [W.D.M.], Leurer J.A.summarized the case law relating to motive to fabricate and stated that “[t]he existence of a motive to fabricate is germane to credibility”(at para 34). This determination was made in the context of defence counsel asserting at trial that there was a motive for the complainantto fabricate the allegations in that matter.

Citing R v Batte (2000), (ON CA), 145 CCC (3d) 449 (Ont CA) at para 21,Leurer J.A. further observed as follows: [35] It is clear that an accused does not bear “an onus to demonstrate that a complainant has a motive to fabricate evidence”. Importantly,the absence of a demonstrated motive to fabricate does not necessarily mean that there was no motive and the absence of a motive tofabricate does not conclusively establish that a witness is telling the truth.

As Doherty J.A. went on to note in Batte, “[t]he presence orabsence of a motive to fabricate evidence is only one factor to be considered in assessing credibility” (at para 121). [24] Speaking for the British Columbia Court of Appeal in R v Swain, 2021 BCCA 207, 406 CCC (3d) 39, Voith J.A. noted that “atrier of fact is entitled to consider an absence of evidence of motive to fabricate when assessing a complainant’s credibility” but cautionedthat “certain risks arising from this consideration … must be avoided” (at para 30).

Those risks were described in the following terms: [31] First, the trier of fact must not equate the mere absence of evidence that a complainant has a motive to fabricate evidence with aproven absence of motive: [references omitted]. The Crown must meet a high bar to prove an absence of motive to fabricate. For example,evidence that the complainant and the accused had a good relationship is insufficient, without more, to establish that the complainant hadno motive to fabricate: [references omitted].

The reason a high standard is required is the recognition that “[p]eople may accuse others ofcommitting a crime for reasons that may never be known, or for no reason at all”: Bartholomew [2019 ONCA 377] at para. 22 [remainderof references omitted]. [32] Second, and for the same reason, the trier of fact must not consider that an absence of evidence of motive to fabricate, or even aproven absence of motive, conclusively establishes that the complainant is telling the truth: [references omitted].

In other words, the trierof fact may consider the absence of evidence of a motive to fabricate as one of various factors in assessing the complainant’s credibilityand must not place excessive weight on it: [references omitted]. In some cases, reliance on an apparent absence of motive to fabricate has

been considered appropriate because it was “one of many” or one of “numerous” factors that were present in the court’s assessment of credibility: [references omitted]. [33] Third, the trier of fact must not reverse the burden of proof, which remains on the Crown to prove its case against the accused beyond a reasonable doubt.

Specifically, the trier of fact must not look to an accused to explain why a complainant has made the allegations they have or be under any impression that the accused has an onus to demonstrate that the complainant has a motive to fabricate evidence in order to achieve an acquittal: [references omitted].

Most notably, this issue has arisen where Crown counsel has inappropriately cross-examined the accused as to why the Crown’s witnesses would fabricate their evidence: [references omitted]. [ 25 ] In addressing a similar situation to the one at hand, in R v Cupid , 2021 ABCA 386 – where neither the Crown nor the defence had raised the issue of a motive to fabricate, but its absence had been commented on in a single line in the trial judgment – Pentelechuk J.A. stated the following: [9] Without question, absence of evidence of a motive to fabricate must not be conflated with proof of no motive to fabricate.

Nor must an accused bear the burden of explaining why a complainant might concoct an allegation. However, neither issue is at play on these facts. [10] The trial judge’s remark on the lack of evidence of a motive to fabricate is easily excisable from the remainder of his analysis. The trial judge was satisfied, based on all of the available and admissible evidence before him, that Mr. Cupid sexually assaulted the complainant. In the circumstances, therefore, the fact that the question of motive was not raised by either Crown or defence counsel during closing submissions was not fatal.

The judge’s reference to lack of evidence of motive was unnecessary to ground a conviction and at most a superfluous observation. … [13] Despite recent ambiguity in the jurisprudence, the question now appears settled. Provided the trial judge does not engage in the improper reasoning highlighted above, they are entitled to consider absence of evidence of a motive to fabricate as one of the factors in assessing the witness’ credibility: [references omitted].

See also R v Davies , 2022 BCCA 172 at para 72 ; R v S.S.S. , 2021 ONCA 552 at paras 19–21 , 406 CCC (3d) 314; and R v A.E.S.P. , 2022 ONCA 405 at para 42 . [ 26 ] Recently, in R v Gerrard , 2022 SCC 13 , 468 DLR (4th) 389 (WL), the Supreme Court grappled with a situation where, like in W.D.M. , defence counsel had raised a motive to fabricate. Justice Moldaver noted that a “[l]ack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence” (at para 4).

He further cautioned about the risks of which a trial judge must be cognizant: [4] … Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie.

That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations ( R. v.

Swain , 2021 BCCA 207 , 406 C.C.C. (3d) 39, at paras. 31–33 ). [ 27 ] I agree with Mr. Jolibois that the trial judge would have fallen into error if he had required him to provide evidence to counter the lack of motivation to fabricate or if he had committed one of the errors described in Gerrard . However, the trial judge did not, in the single sentence that Mr. Jolibois focuses on, commit any of the errors identified in Gerrard or the other cases to which I have referred.

For example, he did not equate the absence of evidence that the complainant had a motive to lie “with evidence disproving a particular motive to lie”. He did not reverse the burden of proof “by requiring the accused to demonstrate that the complainant [had] a motive to lie or explain why a complainant has made the allegations”. The trial judge also did not equate the lack of evidence of such a motive as establishing the truthfulness of the complainant’s testimony.

To the contrary, the reasons contain a single line representing an observation that merely closed the loop on this portion of the trial judge’s analysis of D.J.’s credibility. This factor did not receive inordinate weight and was not used improperly. In short, in my view, there is no indication that an absence of an explanation by Mr. Jolibois affected the trial judge’s assessment of credibility or reflected a shifting in the burden of proof. [ 28 ] Turning to the second branch of Mr.

Jolibois’s argument, I can see no error in the method by which the trial judge assessed D.J.’s credibility in light of C.S.’s testimony. The order in which credibility is assessed does not amount to legal error: R v Vuradin , 2013 SCC 38 at para 21 , [2013] 2 SCR 639, and R v Van Deventer , 2021 SKCA 163 at paras 18 and 20 , 407 CCC (3d) 291. What matters is that a trial judge not lose sight of the principles related to reasonable doubt. When a decision is read serially, paragraph by paragraph, it can give rise to the impression that each

section represents its own watertight analysis. This is generally not the correct way to read a trial judge’s reasons: the reasons must be read as a whole. Here, when the trial judge described his finding regarding D.J.’s credibility, he was concurrently aware of his

summary of the important evidence and his findings with regard to C.S.’s testimony. A failure to explicitly describe C.S.’s testimony at the same moment in his oral decision where he discussed his assessment of D.J.’s credibility does not mean that he did not take it into account. He mentioned the issue of C.S.’s alleged continued sleeping twice in his

summary of the evidence and addressed it in his analysis shortly after he discussed D.J.’s credibility. At the end, he brought it all together with the following

summary, which made it clear that he understood and applied the correct burden of proof and the principles related to reasonable doubt (repeated here for clarity): “The accused’s evidence is not believed, nor does it raise a reasonable doubt as to his guilt. No reasonable doubt exists on all of the evidence before the Court. I, thereby, find the accused guilty of both counts on the Information”. [ 29 ] There is no error revealed in the trial judge’s assessment of D.J.’s credibility. The trial judge did not err by reversing the burden of proof. This ground of appeal cannot succeed. B. Sufficiency of reasons

[ 30 ] Mr. Jolibois submits that the trial judge failed to provide sufficient reasons regarding the assessment of the evidence. He specifically argues that the trial judge was required to explicitly address the complainant’s evidence that Mr. Jolibois had fallen asleep in C.S.’s bed when the other uncontroverted evidence indicated that he was located a short time later in his own bed. The Crown responds by arguing that the trial judge was not required to recount every subsidiary finding on credibility or make incidental findings of fact.

It submits that the reasons meet the requirements set out in the applicable case law. [ 31 ] Trial judges have a duty to give sufficient reasons for judgment for three main purposes: (

a) to enable the parties to know why the verdict was rendered; (

b) to permit effective appellate review; and (

c) to promote judicial accountability. [ 32 ] Additionally, sufficient reasons help ensure fair and accurate decision-making. These propositions are set out in R v R.E.M. , 2008 SCC 51 at paras 11–15 , [2008] 3 SCR 3 [ R.E.M. ]. In that case, the Supreme Court directed the application of a functional, context- specific approach and stated that, when courts of appeal consider the adequacy of a trial judge’s reasons, they 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” (at para 16).

However, R.E.M. continues on to indicate that a trial judge is not required to expound on every finding or conclusion made in arriving at the verdict; reasons for judgment are not the equivalent of a “jury instruction” ( R v Sheppard , 2002 SCC 26 at para 55 , [2002] 1 SCR 869): see also, R v D.B ., 2022 SKCA 76 at paras 62–63 , [2022] 10 WWR 503; W.D.M. at paras 18–23 ; R v KBW , 2022 SKCA 8 at para 17 ; and R v Hoskins , 2021 SKCA 23 at paras 79–81 . [ 33 ] In Hoskins , Schwann J.A. set out the following guidance for cases that involve a challenge to the sufficiency of reasons related to a credibility assessment: [82] Where a case turns on credibility, the sufficiency of reasons cannot be divorced from the deferential stance afforded to trial judges in relation to this sort of finding.

What constitutes sufficient reasons on issues of credibility was addressed in R v Dinardo , 2008 SCC 24 , [2008] 1 SCR 788: [26] At the trial level, reasons “justify and explain the result” ( Sheppard , at para. 24 ). Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

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

That is why this Court decided, most recently in H.L . [2005 SCC 25], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available.

Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20–21] [ 34 ] This description of the analysis fits nicely with the summation regarding reasons for findings of credibility made by McLachlin C.J.C. in R.E.M. : [56] … The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence.

Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law.

Reasonable inferences need not be spelled out. … Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. [ 35 ] Recently, in R v G.F ., 2021 SCC 20 , 459 DLR (4th) 375, Karakatsanis J., writing for the majority of the Court in the context of a sexual assault case, provided the following guidance for appellate courts when assessing the sufficiency of reasons where the issue of credibility is challenged: [69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient: [references omitted].

Appellate courts must not finely parse the trial judge’s reasons in a search for error: [references omitted]. Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M ., “The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para. 17.

And as Charron J. stated in Dinardo , “the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”: para. 31. [70] This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal.

If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: [references omitted]. [71] The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why: Sheppard , at para. 55 . Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may explain the

factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither the aggrieved party nor the appellatecourt can understand the factual basis of the trial judge’s findings: [references omitted]. … [81] … Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence,and articulating reasons for findings of credibility can be more challenging.

Mindful of the presumption of innocence and the Crown’sburden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why theaccused is found not to be credible, or why the evidence does not raise a reasonable doubt. [36] An application of these principles to the matter at hand reveals that the trial judge’s oral reasons, while relatively sparse, aresufficient. A reader of the Trial Decision is not left wondering why the trial judge convicted Mr. Jolibois.

In short, after summarizing theevidence and the issues, he found D.J.’s evidence to be credible and reliable, he disbelieved Mr. Jolibois on the portions of his testimonyrelated to his level of intoxication and whether he had entered C.S.’s bedroom and touched D.J., and – after applying the principles from Rv W.(D.), (SCC), [1991] 1 SCR 742 – he found that he did not have a reasonable doubt as to guilt, based on all of theevidence.

The trial judge was not required to overtly resolve every incongruence in the evidence or comment on all aspects of it. [37] On the key issue of credibility, and the assessment of the time periods when the offence was alleged to have been committed,the trial judge articulated his findings and expressed reasons that are sufficient to understand why he arrived at those determinations. Herecounted the evidence regarding Mr. Jolibois’s presence in the two bedrooms when he summarized the important evidence, reinforcingthat he was aware of this issue. Given his discussion of the timelines, and the fact that Mr.

Jolibois’s bedroom was located scant feet awayfrom C.S.’s bedroom, a failure to further explicitly mention Mr. Jolibois’s ultimate location does not undermine the sufficiency of thereasons. The trial judge obviously inferred that Mr. Jolibois had quietly gone back to his own bedroom in the time that he had to do so.There was no requirement to further discuss this factor. In my view, it is readily apparent why Mr. Jolibois was convicted. There is asufficient basis for appellate review. This ground of appeal cannot be given effect. VI.

CONCLUSION [38] The appeal is dismissed. “Tholl J.A.” Tholl J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Leurer J.A.” Leurer J.A.