W.D.M. Appellant v. Her Majesty the Queen, 2022 SKCA 64

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3490 Citation: R v W.D.M. , 2022 SKCA 64 Date: 2022-05-31 Between: W.D.M. Appellant And Her Majesty the Queen Respondent Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr.

Justice Leurer In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Madam Justice Schwann On appeal from: CRM 367 of 2020, Saskatoon Appeal heard: February 18, 2022 Counsel: Brian Pfefferle and Julian Nahachewsky for the Appellant Pouria Tabrizi-Reardigan for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] After a trial before a Court of Queen’s Bench judge sitting without a jury, W.M. was convicted of sexual assault and exposing himself to a minor for a sexual purpose: R v W.D.M. (10 September 2021) Saskatoon, CRM 367 of 2020.

W.M. appeals from his conviction. [ 2 ] W.M.’s conviction stood exclusively on the complainant’s testimony. However, the trial judge’s reasons for judgment fail to grapple with several significant parts of the evidence that bore directly on the complainant’s credibility and reliability as a witness. This leads me to conclude that either the reasons are deficient in law or the trial judge proceeded under a misapprehension of the evidence as a whole. Whichever way it is viewed, there must be a new trial. My reasons for reaching this conclusion follow. II. BACKGROUND A.

The charges [ 3 ] W.M. went to trial facing a two-count indictment. It alleged that, between January 1, 2006, and December 31, 2008, he (

a) committed sexual assault on a child [complainant], contrary to s. 271 of the Criminal Code , and (

b) did, for a sexual purpose, expose his genitals to the complainant, a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code . Both charges were said to have arisen out of a single incident in which W.M. is alleged to have exposed himself to the complainant and masturbated on her. [ 4 ] The complainant was born in 2000. She would have been between the ages of five and eight during the period covered by the indictment. At the time of the alleged incident, W.M. was in a committed relationship with the complainant’s mother.

W.M. and the mother had a child together who was born in 2004 [sister]. [ 5 ] W.M., the mother, the complainant and the sister lived together in an apartment in Saskatoon in the period covered by the indictment. In late 2009, the mother moved with her daughters to Edmonton. W.M. did not move with them. The complainant came forward with her allegation many years later. B. The evidence [ 6 ] The trial took place in September 2021. There were three witnesses: the complainant, the mother and W.M. [ 7 ] The complainant testified that the incident occurred in 2006 or 2007, when she was six or seven.

It was after her bedtime. She was playing in the bedroom she shared with her sister. Her sister was asleep. The complainant heard footsteps coming towards the

bedroom so she quickly went to her bed, laid on her back, closed her eyes and pretended to sleep. The complainant described in somedetail the blanket with which she covered herself and the nightgown she was wearing. [8] According to the complainant, W.M. came into the room and turned on the light. She heard a sound which she thought to beW.M.’s shoulder hitting the canopy over her sister’s bed. She said W.M. pulled off the blanket covering the complainant and lifted hernightgown.

When she felt this, the complainant opened her eyes slightly, just enough so she could see, but not enough that W.M. could seethat her eyes were open. [9] The complainant described W.M. as wearing orange shorts and a muscle shirt. Her testimony was that W.M. dropped hisshorts to around his ankles and masturbated over her and then ejaculated on her. She said that she saw W.M.’s shorts around his ankles.She also saw the ejaculate come from his penis and felt it land on her bare chest. Throughout, W.M. did not speak.

W.M. then turned offthe light and left the room. [10] The complainant stated that this was the only occasion on which she had seen W.M. come into her bedroom at night. She alsosaid that there was no other occasion of sexual misbehaviour by W.M. [11] The complainant testified that she would have been 18 or 19 years old at the time she came forward with this allegation againstW.M.

She said she did so after seeing her sister go through a trial involving an alleged sexual assault committed by another of themother’s ex-boyfriends. [12] The cross-examination of the complainant was designed to raise doubt as to the reliability and credibility of her testimony. Iwill return to discuss some of this later in these reasons. However, one important point bears mention at the outset.

The testimony of allthree witnesses was that the complainant harboured great animus towards W.M. for reasons unrelated to the alleged assault. [13] The mother testified as to her relationship with W.M. and as to W.M.’s relationship with the complainant. She explained that,while her work commitments led to situations where W.M. had been responsible for putting both of her daughters to bed, she did not see anincident such as that described by the complainant. In cross-examination, the mother agreed that she “most likely” would have spokenpoorly of W.M. after her break-up with him.

The mother agreed that W.M. had treated the complainant differently than he had treated thesister, his biological daughter. She described the complainant as holding “a lot of anger and resentment” towards W.M. [14] W.M. testified in his own defence. He agreed that he had been stricter with the complainant than with the sister, that at times hehad been verbally abusive towards the complainant and that he had spanked the complainant harder than he spanked the sister. Heacknowledged that he had made the complainant cry.

W.M. denied that he ever showed the complainant his penis intentionally ormasturbated on her. [15] In cross-examination, W.M. agreed with much of the complainant’s description of the apartment and the clothes that she waswearing. He confirmed that he looked after the children during times the mother worked. He admitted that he was closer to his daughterthan with the complainant, whom he called his stepdaughter but not daughter. He further agreed that the complainant sometimes hadtrouble sleeping and would get up at night. This would make him frustrated.

Sometimes he would “peek in” on the girls to see if they wereasleep. On one occasion, the mother confronted him about this. W.M. did not recall owning a pair of orange shorts. C. Trial decision [16] The trial occurred over two days. At the conclusion of submissions, the trial judge reserved his decision. He delivered an oraldecision the next day. Apart from the recitation of the charges and self-instruction on R v W.(D.), (SCC), [1991] 1 SCR742, the following is the totality of the trial judge’s reasons: There were only three witnesses in the trial: the complainant, […]; her mother, […]; and the accused, [W.M.].

It is a “he said/she said” trial. There is no corroborating evidence such as DNA or anything else. [The complainant] testifies that [W.M.] came over to her bed, was standing beside her bed, and drew down her covers and lifted up hernighty. He then dropped his shorts and masturbated to the point of ejaculation.

She testifies that he ejaculated on her chest. [Thecomplainant] avers that she pretended to be asleep, although she had her eyes open slightly and has no doubt that it was [W.M.]. … [W.M.] testified and flatly denied the event ever took place. … … The evidence respecting [W.M.]’s guilt comes from one witness, the complainant, […]. She’s now 21 years old and is testifying withrespect to an incident that took place when she was 6 or 7 years old. I must scrutinize her evidence in the context of credibility and reliability.

Credibility in the sense of is she telling the truth, and reliabilityin the sense of did it really happen. I engage in that analysis knowing that [W.M.] has flatly denied that the incident happened. I have no hesitation in accepting the evidence of [the complainant]. It was cogent, believable, authentic, and in its own way searing. To besure, there are some inconsistencies or vagueness respecting dates and times or other facts that are incidental to the narrative.

However,her evidence as to the conduct that constitutes the actus reus of the offences was absolutely convincing. [The complainant’s] evidence is more than sufficient to displace the presumption of innocence and, more to the point, allows me toconclude beyond a reasonable doubt that the Crown has met its onus on each and every element of each of the two counts. Accordingly, Ifind the accused guilty of both counts in the Indictment.

… III. THE ISSUE [17] W.M. asks for a new trial. He submits that the trial judge erred: (

a) by more strictly scrutinizing the defence evidence than thatcalled by the Crown; (

b) in his W.(D.) analysis; (

c) by failing to consider all of the material evidence; and (

d) by failing to providesufficient reasons for discounting the evidence that W.M. says should have given rise to a reasonable doubt as to his guilt. However, attheir root, all of W.M.’s arguments derive from the very limited explanation that the trial judge gave for convicting him. For this reason,the outcome of W.M.’s appeal turns on the whether the trial judge’s reasons are legally sufficient. IV. ANALYSIS [18] A trial judge must deliver sufficient reasons for a verdict.

It is “through reasoned decisions that judges are held accountable tothe public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done in aparticular case” (R v G.F., 2021 SCC 20 at para 68, 459 DLR (4th) 375, making reference to R v Sheppard, 2002 SCC 26 at paras 15, 42and 55, [2002] 1 SCR 869 and R.J.

Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018) at134). [19] As explained in R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621, there are two steps to the analysis when a claim is made that atrial judge’s reasons are so inadequate as to require a new trial: [13] … Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, dothey prevent appellate review?

In other words, the Court [in Sheppard] concluded that even if the reasons are objectively inadequate, theysometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. … [20] Appellate courts are instructed to adopt a functional approach to reviewing the sufficiency of reasons.

In R v Dinardo, 2008SCC 24, [2008] 1 SCR 788, the Supreme Court emphasized that the inquiry “should not be conducted in the abstract, but should bedirected at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel”(at para 25). [21] In R v R.E.M., 2008 SCC 51 at para 16, [2008] 3 SCR 3, McLachlin C.J. noted that “courts of appeal considering thesufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of thepurposes or functions for which they are delivered”.

She went on to state as follows: [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to showhow the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in [R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA)] predates thedecision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’sreasons is apt.

Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tellthe parties what he or she has decided and why he or she has made that decision” (emphasis added). What is required is a logicalconnection between the “what” — the verdict — and the “why” — the basis for the verdict.

The foundations of the judge’s decision mustbe discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. (All emphasis in original) [22] Commenting on the degree of detail that reasons must contain to be sufficient, McLachlin C.J. stated in R.E.M. that “what isrequired is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge hasseized the substance of the matter” (at para 43).

While noting that “[t]he degree of detail required may vary with the circumstances” (atpara 44), McLachlin C.J. held that “it is generally reasonable to infer that the trial judge understands the basic principles of criminal law atissue in the trial” (at para 45).

However, “the presumption that trial judges are presumed to know the law with which they work on a day-in day-out basis does not negate the need for reasons to show that the law is correctly applied in the particular case … nor the need forreasons to deal with ‘troublesome principles of unsettled law’” (at para 47, citing Sheppard at para 55, points 9 and 6, respectively). [23] In G.F., Karakatsanis J. described an appellate court’s task to be to “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 effectiveappellate review” (at para 69).

Referring to R.E.M., she emphasized the need to draw from the record when assessing the sufficiency of atrial judge’s reasons, noting that “[i]f the trial reasons do not explain the ‘what’ and the ‘why’, but the answers to those questions are clearin the record, there will be no error” (at para 70). However, “reasons must be both factually sufficient and legally sufficient”.

There is alow bar to establishing factual sufficiency as “[e]ven 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” (at para 71). Legal sufficiency,on the other hand, “requires that the aggrieved party be able to meaningfully exercise their right of appeal”.

As Karakatsanis J. noted,“[l]egal sufficiency is highly context specific and must be assessed in light of the live issues at trial” (at para 74). [24] In this case, at trial, the defence submissions were focused on inconsistencies in the complainant’s testimony and, in certainrespects, between the testimony of the complainant and the mother. The defence also argued that aspects of the complainant’s accountwere implausible or made no sense. Finally, the defence submitted that the complainant’s animus towards W.M. was a reason to discounther credibility.

It was argued that all of this, together with W.M.’s testimony denying that the event described by the complainant tookplace, meant that there must be reasonable doubt as to his guilt. In his appeal, W.M. points out that the only reasons given by the trialjudge for accepting the complainant’s testimony, and rejecting his own denial, are found in the following passage from the judge’sreasons:

I have no hesitation in accepting the evidence of [the complainant]. It was cogent, believable, authentic, and in its own way searing. To besure, there are some inconsistencies or vagueness respecting dates and times or other facts that are incidental to the narrative. However,her evidence as to the conduct that constitutes the actus reus of the offences was absolutely convincing. [25] W.M. submits that these four sentences fail to address the issues raised in the evidence that bore on the credibility andreliability of the complainant’s testimony.

The result, he says, is that the trial judge’s reasons are insufficient at law and a new trial isrequired. [26] As part of his argument, W.M. points to inconsistencies in the complainant’s testimony as to her age, the time of year and thetime of day the alleged assault took place. In relation to the first of these points, in her examination-in-chief, the complainant testified thatshe was between the ages of six and seven when the incident took place. In a statement to the police, the complainant had indicated thatshe was “about” six years old when the incident took place.

However, as she testified to at trial, at the preliminary inquiry, she had saidthat she was between the ages of six and eight. In relation to the second point, at trial, the complainant gave a somewhat differentdescription as to when the incident took place. She stated in cross-examination that the incident occurred in spring or summer, “becausethe leaves were green”. When it was pointed out that, at the preliminary hearing, she had described it as being “slushy outside” when theincident occurred, she narrowed the time to “probably” the springtime.

In relation to the third of these points, at the trial, the complainanttestified that the incident took place in the evening at “nine-ish, around there. Eight or nine”.

However, at the preliminary hearing, she hadtestified that it occurred at 10:30 p.m. [27] Even though W.M.’s counsel agrees that these inconsistencies were incidental and individually may not be of concern, hesubmits that, taken together, they can give rise to a reasonable doubt and should have been addressed by the trial judge in his reasons.Although not referred to by W.M. in argument, his position finds support in R v B. (R.W.) (1993), 24 BCAC 1 (WL) (CA).

In that case,Rowles J.A. noted that “there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistenciesbetween the complainant’s evidence and the testimony of other witnesses”.

She then continued by observing that while individualinconsistencies in the evidence may not be significant, they may become so when looked at in the totality of the situation: [29] … While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies maybecome quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence.

There is norule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of theinconsistencies in order to assess whether the witness’ evidence is reliable. This is particularly so when there is no supporting evidence onthe central issue, which was the case here.

This passage has been cited with approval by trial and appeal courts in many provinces, and by Rothstein J. in F.H. v McDougall, 2008SCC 53 at para 57, [2008] 3 SCR 41. [28] Nonetheless, on the facts of this case, I do not consider the failure by the trial judge to specifically address the discrepancies inthe complainant’s testimony as to her age, the time of day or time of year when the alleged incident took place, standing alone, to warrantappellate intervention.

While they are matters that could have cast doubt on the complainant’s testimony, this was a child witness, and itwas ultimately within the province of the trial judge to weigh these matters. The trial judge’s statement that he was not persuaded that the“inconsistencies or vagueness respecting dates and times or other facts that are incidental to the narrative” affected his assessment of thecomplainant’s testimony satisfies me that he had accounted for them.

His reasons are therefore not deficient simply because he did notaddress these points in more detail. [29] However, there were other issues raised in the evidence that go beyond what can be fairly dismissed as simply being incidentalto the narrative. I will mention several of the more important ones.

Because I have concluded that a new trial is required, and it will be upto the trier of fact at the new trial to weigh these matters, I do not intend this list to be comprehensive, nor my discussion of the issuesraised by these matters to be exhaustive. [30] The first, and perhaps most important, issue the trial judge failed to address relates to the animus that the complainant statedthat she felt towards W.M. As I have already noted, she testified that she had harboured significant ill will towards W.M. for reasonsunrelated to the alleged assault.

In this regard, the mother said that W.M. treated the complainant much more poorly than he treated thesister. The complainant testified that she felt unloved and unwanted by W.M. and singled out by him because she was not his biologicalchild. She described him as being physically abusive with her for this reason. She felt he picked on her more than the sister. When she wasasked if all of this caused her to hate W.M., she answered, “With a passion”. She testified not only that she hated W.M., but that shethought about it every day. This was a central pillar of W.M.’s defence.

He argued, with some force, that the complainant’s admittedanimus towards him rendered her evidence suspect. Yet, I can see nothing in the judgment that would constitute even an indirect commenton this evidence. [31] The defence also linked the issue of motive to other evidence. As adults, the complainant, the mother and the sister all livedtogether. The mother has a history of violence against former partners and a conviction for assault with a weapon on one of her ex-partners. The defence suggested that the complainant and the sister were targeting their mother’s ex-partners.

This suggestion finds at leastsome support in the mother’s testimony that the complainant came forward with her allegation only after a family conflict involving W.M.at a powwow, after which the mother told W.M. that he would never see his daughter (the complainant’s sister) again based on what thecomplainant had told her.

This evidence also went unmentioned by the trial judge in his reasons. [32] The Crown submits on appeal that it would have been an error for the trial judge to have considered the defence’s suggestionthat the complainant had fabricated the story out of spite, or was targeting W.M., because such a theory was a “clear rape myth”.

It cites toR v Seaboyer, (SCC), [1991] 2 SCR 577 at 653, which describes, in the passage relied upon by the Crown, one such mythto be that “women are thought to fabricate the sexual activity not as part of a fantasy life, but out of spite”. [33] I cannot agree that the arguments raised by W.M. in relation to the complainant’s motive to fabricate her evidence are in someway inadmissible because they involve an impermissible line of argument or reasoning. I fail to see how the rape myth the Crown hasreferred to can be invoked on the facts here.

This is not even a case where the complainant’s animus arises because she is a victim of thealleged sexual assault. I can see room for the Crown’s argument in such a case. Instead, here, the complainant’s acknowledged hatred

toward W.M. existed for reasons completely unrelated to the alleged crimes. The complainant’s ill will toward W.M. therefore bearsdirectly on her credibility and required the trial judge’s attention. [34] The existence of a motive to fabricate is germane to credibility. Justice Doherty put it this way in R v Batte (2000), (ON CA), 145 CCC (3d) 449 (Ont CA): [120] … Juries are told to use their common sense and combined life experience in assessing credibility.

It is difficult to think of a factorwhich, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive tofabricate evidence.

Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, willand should consider in assessing a witness’ credibility. (Emphasis added) [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 amotive to fabricate does not conclusively establish that a witness is telling the truth.

As Doherty J.A. went on to note in Batte, “[t]hepresence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility” (at para 121). [36] The evidence in this case went well beyond an absence of a motive to fabricate.

As I have noted, the complainant stated that shehated W.M. and thought about it every day. [37] In R v Ignacio, 2021 ONCA 69 at para 35, 400 CCC (3d) 343, leave to appeal to SCC refused, , Pepall J.A.found that the trial judge in that case “was required to consider motive to fabricate due to the defence allegation that the complainant hada motive to fabricate” (at para 35, emphasis added).

Similarly, in R v S.R., 2022 ONCA 192, the Ontario Court of Appeal stated that “[a]sin Ignacio, at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had amotive to fabricate” (at para 30). [38] In R v R.P., 2020 ONCA 637, the trial judge was found to have committed several errors in assessing witness credibility, one ofwhich was the failure to adequately address the complainant’s alleged motive to fabricate her testimony.

While the trial judge hadcommented on the alleged motive for fabrication, the Court of Appeal determined that “the trial judge did not engage in the necessaryclose examination” of the evidence (at para 19).

Justice Harvison Young noted: [19] Moreover, the motive to fabricate argument had some strength given the tensions at home, which predated the alleged incident.This called for a closer examination of the complainant’s credibility, and of the various alleged inconsistencies in the evidence, which Iwill review in more detail shortly. … [39] Justice Harvison Young went on to explain that the conflicting evidence “went directly to the complainant’s credibility and hermotive to fabricate”, but this was “not addressed in the reasons”.

Finally, she concluded that, “[g]iven the centrality of credibility in thiscase, these issues required greater scrutiny” (at para 20). [40] In R v Swain, 2021 BCCA 207 at para 28, 406 CCC (3d) 39, Voith J.A. noted that the existence of proof that a complainant hada motive to fabricate an allegation “may substantially challenge the credibility of the complainant, which may be capable of raising areasonable doubt”. Justice Voith later identified three risks that must be avoided where a trier of fact considers the absence of evidence ofa motive to fabricate when conducting a credibility assessment. These are that (

a) the “trier of fact must not equate the mere absence ofevidence that a complainant has a motive to fabricate evidence with a proven absence of motive” (at para 31), (

b) the “trier of fact mustnot consider that an absence of evidence of motive to fabricate, or even a proven absence of motive, conclusively establishes that thecomplainant is telling the truth” (at para 32) and (

c) the “trier of fact must not look to an accused to explain why a complainant has madethe allegations they have or be under any impression that the accused has an onus to demonstrate that the complainant has a motive tofabricate evidence in order to achieve an acquittal” (at para 33). I emphasize these three points because of the existence in this case of anadmitted motive to fabricate. [41] Finally, on this issue, I would mention R v JOL, 2020 ABCA 73, 7 Alta LR (7th) 180. This case again illustrates the need for atrier of fact to consider motive to fabricate when there is evidence supporting its existence.

In that case, the Alberta Court of Appeal foundthat the trial judge had erred in failing to provide a specific instruction about this issue: [52] We agree the trial judge erred in refusing defence counsel’s request to provide a specific instruction regarding motive to fabricate.While not determinative, the existence of a motive to fabricate is relevant to assessing credibility: R v CEK, 2020 ABCA 2 at para 26; R vZapeda, 2018 ABCA 425 at para 10; R v Batte, (ON CA), 49 OR (3d) 321 at paras 119-121, 134 OAC 1 (CA).

Thisapplies to all matters, including sexual assault trials. [53] The appellant was entitled to have his defence put forward. In our view, a generic line that applied to both the complainant and theappellant, without any reference to the evidence supporting motive to fabricate, was insufficient. [42] While the court in JOL was analyzing the sufficiency of a jury charge rather than the reasons for conviction provided by a trialjudge, the decision raises an important point.

Where credibility is a central issue and there is evidence suggesting that a complainant mayhave been motivated to fabricate an allegation against the accused, the trier of fact is required to consider this information. Where, as here,there is direct evidence of such a motive, and the motive plays a central part of the arguments relating to the credibility of a witness, a trialjudge’s reasons should generally address it. [43] The second important matter that was unaddressed in the trial judge’s reasons relates to inconsistencies in what the complainantclaims to have seen.

At trial, the complainant testified that she saw W.M. ejaculate on her chest. At the preliminary hearing, she stated thatshe felt something land on her and later had wiped it off her chest and stomach and thought it was semen. When asked at the preliminaryhearing if she had seen where what she wiped off came from, she answered that she had not, but stated that she “had seen that [W.M.] hadhis penis in his hand and [she] closed [her] eyes”. This discrepancy was one of the cornerstones of the arguments made on W.M.’s behalfat the trial. It is not a minor one.

According to the Crown’s theory of the case, it was this act that constituted the actus reus of the sexual

assault. Yet, no mention is made of this discrepancy in the complainant’s retelling of events in the trial judge’s reasons. [ 44 ] The third important aspect of the evidence that the trial judge failed to address is whether it was plausible that the complainant had seen what she claimed to have seen. The issue here arose because of the complainant’s description of what she did after she claimed to hear W.M. approach her room. It is to be recalled that she testified that she hopped into bed, lay on her back and closed her eyes, although she later opened them slightly while looking upwards.

She agreed that, because her eyes were only partially open, the corner of her vision was being cut off. She also said that W.M. was not looking directly at her, yet she said she could see the colour of his eyes. She testified that she was lying on her back, her head on the pillow, looking up, while W.M. was standing beside the bed about where her ribcage was, yet she said could see his shorts at his ankles while she kept her head still. She explained that she could do this because she could move her eyeballs.

In my respectful view, the trial judge should have reconciled the evidence regarding the configuration of the room, the complainant’s placement in it and the description by the complainant of her actions, with what she testified to having seen. [ 45 ] The trial judge’s reasons do not address any of these important areas of concern. None of them can be said to be “inconsistencies or vagueness respecting dates and times or other facts that are incidental to the narrative”. There was certainly nothing vague or inconsistent about the complainant’s hatred for W.M.

She stated that she thought about her hatred of W.M. every day. The question as to whether the complainant saw W.M. ejaculate involves a discrepancy in her testimony, however, it neither relates to a time or place, nor is it a matter that is incidental to the alleged crime. The issue as to whether it was plausible that the complainant saw what she described was key to the reliability and credibility of her testimony. Each of these three matters emerged directly from the evidence and was central to W.M.’s defence to the charge.

In my respectful view, it was incumbent on the trial judge to address these matters in his reasons. The failure by the trial judge to do so makes it impossible for this Court to determine how, if it all, they were accounted for by him in his assessment of the complainant’s credibility and reliability as a witness. [ 46 ] Here, in the language of Sheppard and R.E.M. , the trial judge’s reasons explained what conclusion he had reached, but not why he had come to it.

As in Dinardo , “it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused” (at para 31), but it was not open for him to do so without explaining how this fit with the unaddressed evidence.

Justice Nordheimer more recently made the same point when he stated that while a “trial judge is not required to address each and every piece of evidence, a trial judge is required to address crucial evidence that bears directly on the credibility and reliability of a witness ” ( R v C.G. , 2021 ONCA 809 at para 42 , 407 CCC (3d) 52, emphasis added). [ 47 ] The Crown argues otherwise. It refers to Dinardo for the proposition that the “sufficiency of the [trial judge’s] reasons should be considered in light of the deference afforded to trial judges on credibility findings” (at para 26).

It also notes that, in both Dinardo (at para 26 ) and G.F. (at para 71 ), the Supreme Court stated that it is only very rarely that a failure by a trial judge to explain the reasons for a credibility or reliability finding will give rise to the legal error of providing insufficient reasons.

However, in my respectful view, this is one such occasion. [ 48 ] In Dinardo , Charron J. quoted from paragraph 55 of Sheppard for the proposition that reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record”.

She went on to explain that, on the facts of Dinardo , “the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations” and that “the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal” (at para 27).

She offered the following additional analysis, which is apropos in the circumstances of this case: [31] As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues. In this case, the complainant’s truthfulness was very much a live issue — the trial judge recognized it as so during the voir dire to determine whether the complainant was competent to testify. At trial, two of the witnesses testified that the complainant could be untruthful and manipulative.

While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant’s inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations. (Emphasis added) [ 49 ] The Crown also argues that “the trial judge entered a conviction because he accepted the evidence against the appellant and found that it proved his guilt beyond a reasonable doubt”.

However, this fails to explain how the trial judge reconciled his conclusion that guilt had been proven beyond a reasonable doubt with the unaddressed evidence. This fact distinguishes the present case from R v M.G.S. , 2021 SKCA 1 , 397 CCC (3d) 331. In that case, this Court upheld a conviction that was explained in brief reasons. M.G.S. emphasizes that “ every case which involves an allegation of insufficient reasons must be evaluated on its own facts in the context of the principles that govern appellate review for this alleged error” (at para 85).

The Court also found a “complete answer” to the submission that the trial judge’s reasons were insufficient in the statement made at paragraph 66 of R.E.M. that the trial judge’s reasons in that case “made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant” ( M.G.S. at para 85 ). These reasons were sufficient because the attack on the complainant’s testimony in that case came from the testimony given by the accused.

The same cannot be said here, where the challenge to the complainant’s testimony came from much more than her word being pitted against W.M.’s. [ 50 ] The Crown also points out that, in R.E.M ., McLachlin C.J. explained that “what is required is that the reasons show that the judge has seized the substance of the issue”, but a trial judge is not “required to enter into a detailed account of the conflicting evidence” (at para 50).

However, in her further description of the framework that governs an appellate court’s role in assessing the sufficiency of a trial judge’s reasons, McLachlin C.J. also instructed that, while paying appropriate deference to a trial judge, the judge’s reasons must recognize and deal with important considerations that bear on the credibility assessment: [55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached.

It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions . If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

(Emphasis added) [51] Chief Justice McLachlin went on to explain the kinds of omissions from a trial judge’s reasons that would not amount to anerror, even if they “are less than ideal”, stating as follows: [56] … The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding ofcredibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile everyfrailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

For example if, in a casethat turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has areasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’sevidence, failed to raise a reasonable doubt. … [52] In this case, the problem is not just that the trial judge failed to reconcile the frailties in the evidence.

Rather, his reasons fail toeven identify the key frailties, let alone explain how a finding that the Crown had proven its case against W.M. beyond a reasonable doubtcan be reconciled with them. In saying this, I wish to emphasize that I am not saying that it would not have been possible for the trial judgeto have found a pathway to guilt on the evidence in this case. However, if that pathway exists, the trial judge did not explain where it lay. [53] To this point in my reasons, I have considered this appeal as involving an insufficiency in the reasons of the trial judge. It mayalso be viewed another way.

In this regard, it is an error of law for a trial judge to fail to consider all material evidence or to proceed on thebasis of a misapprehension of the evidence. [54] As explained by Doherty J.A. in R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA), a“misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance ofthe evidence, or a failure to give proper effect to evidence” (at 218).

Justice Doherty further explained that “[w]here a trial judge ismistaken as to the substance of material parts of the evidence and those errors play an essential

part in the reasoning process resulting in aconviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict” (at 221). Later,in the same paragraph, he added the following: … If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. [55] In R v Lohrer, 2004 SCC 80 at para 1, [2004] 3 SCR 732, Binnie J., speaking for the Supreme Court, agreed with DohertyJ.A.’s observations. He also emphasized that Morrissey “describes a stringent standard”, that “must go to the substance rather than thedetail” (at para 2). See also: R v Paproski, 2021 SKCA 65 at para 26; R v Thalheimer, 2022 SKCA 25 at para 45; and C.G. at para 47. [56] Of course, not every misapprehension of evidence justifies appellate intervention.

Rather, “to give effect to an appeal on thisground, a trial judge must be mistaken about the substance of material parts of the evidence and the misapprehension must play anessential

part in the reasoning process” (Paproski at para 26, emphasis added). It has also been said that an appellate court “will interfereonly where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and theerror plays an essential

part in the reasoning process, not just of the narrative” (S.R. at para 14, emphasis in original, referring to R vCloutier, 2011 ONCA 484 at para 60, 272 CCC (3d) 291). [57] Here, the failure by the trial judge to grapple with evidence that was central to the reliability and credibility of thecomplainant’s testimony, on which the conviction of W.M. hung, can only be described as going to the central part of the case.

This meansthat either the trial judge ignored this evidence – in which event he proceeded under a misapprehension of the evidence as a whole – or hisreasons are deficient at law because they do not allow for appellate review on this issue. V. CONCLUSION [58] The Crown appropriately points out that, in R.E.M. and G.F., the Supreme Court has communicated its deep concern that safeconvictions, particularly in matters involving sexual offences, are being overturned not for legal error “but on the basis of parsingimperfect or

summary expression on the part of the trial judge” (G.F. at para 76). However, I do not interpret either decision to be a call toshield insufficient reasons and potentially dangerous convictions from appropriate appellate scrutiny.

Rather, I agree withNordheimer J.A. when he stated, with specific reference to G.F., that it “does not direct appeal courts to overlook or disregard materialreasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing andpunishing someone” as guilty of a criminal offence (C.G. at para 56). [59] In my respectful view, the trial judge’s failure to explain how he dealt with important evidence and the arguments that weremade to him based on that evidence precludes appellate review. As a result, his reasons are insufficient in law.

The only other conclusionopen to me is that the judge ignored this evidence and thereby erred in law. Whichever way it is viewed, a new trial must be held. “Leurer J.A.” Leurer J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.I concur. “Schwann J.A.” Schwann J.A.