R.P. Appellant v. His Majesty the King, 2023 SKCA 65

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Codedirecting that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3557 Citation: R vR.P., 2023SKCA 65Date: 2023-05-26Between:R.P.Appellant AndHis Majesty the KingRespondent Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice KalmakoffIn concurrence: The Honourable Mr.

Justice Caldwell The Honorable Madam Justice SchwannOn appeal from: 2022 SKQB 58, SaskatoonAppeal heard: May 17, 2023Counsel: Laura Mischuk for the Appellant Grace Hession David for the Respondent Kalmakoff J.A. [1] After a judge alone trial in the Court of Queen’s Bench, R.P. was found guilty of sexual interference, contrary to s. 151 of theCriminal Code, and sentenced to a three-year term of imprisonment.

A second charge, of sexual assault, was stayed by the trial judge inaccordance with R v Kienapple, (SCC), [1975] 1 SCR 729. [2] The complainant, R.P.’s daughter, testified that, when she was three years old, he had engaged in sexual contact with her. R.P.testified that no such thing had ever occurred. The trial judge accepted the complainant’s evidence, rejected the testimony given by R.P.,and found him guilty (R v D.E., 2022 SKQB 58 [Trial Decision]). [3] R.P. appeals against his conviction.

He contends that the trial judge failed to give adequate reasons for rejecting his evidence.In particular, he asserts that the trial judge did not explain, in a manner that permits effective appellate review, how his denial of havingcommitted the offence could be found to be plausible yet at the same time fail to raise a reasonable doubt about his guilt. [4] For the reasons that follow, I would dismiss the appeal. [5] The duty to give sufficient reasons serves three main purposes: (

i) to enable the parties to know why the verdict was rendered,(ii) to permit effective appellate review; and (iii) to promote judicial accountability (R v Jolibois, 2022 SKCA 120 at para 31 [Jolibois]). Itis an error of law for a trial judge to fail to provide an explanation for their decision that is sufficiently intelligible to permit effectiveappellate review (R v Sheppard, 2002 SCC 26 at para 1, [2002] 1 SCR 869).

This does not mean, however, that trial judges must givereasons that are the equivalent of a jury instruction, or that they are required to set out every conclusion they make in the process of arrivingat a verdict or resolve every inconsistency in the evidence raised by the defence (R v Arno, 2022 SKCA 55 at para 30.

See also: R v R.E.M.,2008 SCC 51 at paras 18–20, [2008] 3 SCR 3 [R.E.M.]; and R v R.A., 2018 SCC 13, [2018] 1 SCR 307, affirming 2017 ONCA 714 atpara 45, 355 CCC (3d) 400). [6] When courts of appeal consider the adequacy of a trial judge’s reasons, a functional and context-specific approach is required.This means the reasons of the trial judge are to be read “as a whole, in the context of the evidence, the arguments and the trial, with anappreciation of the purposes or functions for which they are delivered” (Jolibois at para 32; R.E.M. at para 16 and R v Hoskins, 2021SKCA 23 at para 79 [Hoskins]).

In determining whether reasons are sufficient, it is important that appellate courts focus on the why of adecision, and not the how. The reasons must show a logical connection between the verdict and the basis for it (Hoskins at para 80; R.E.M.at para 17; and R v D.B., 2022 SKCA 76 at para 63, [2022] 10 WWR 503).

The critical question is whether the reasons “read in context andas 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 permitseffective appellate review” (R v G.F., 2021 SCC 20 at para 69, 404 CCC (3d) 1 [(G.F.)]). [7] Where, as here, a case turns largely on factual findings about the credibility and reliability of the witnesses, the sufficiency ofthe reasons should be considered in light of the deference afforded to trial judges in relation to those sorts of findings (Hoskins at para 82,citing R v Dinardo, 2008 SCC 24 at para 26, [2008] 1 SCR 788 [Dinardo]).

While a failure to sufficiently articulate how credibilityconcerns were resolved may in some cases constitute reversible error, mere deficiencies in the reasons will rarely merit intervention onappeal (Dinardo, at para 26). An accused person is entitled to know why the trial judge was left with no reasonable doubt about their guilt,but assessing credibility is not a science, and it is not necessary for trial judges to articulate every aspect of their credibility findings withclinical precision (R v Gagnon, 2006 SCC 17 at paras 20–21, [2006] 1 SCR 621).

Where insufficient reasons are raised as a ground ofappeal, the appellant bears the burden of demonstrating that the deficiencies in the reasons are of such a nature as to frustrate effective

appellate review (G.F. at para 79). At bottom, what matters is that the reasons explain the basis for the verdict in a way that is sufficientlyintelligible to permit an appellate court to review the decision in accordance with the law. [8] I am not persuaded that the trial judge’s reasons in this case were inadequate. When the Trial Decision is read from a functionalperspective, in conjunction with the evidence, the arguments made at trial and the governing law, it readily permits effective appellatereview.

Moreover, I have no difficulty in discerning why the trial judge rejected R.P.’s evidence and found that it did not raise a reasonabledoubt about his guilt. Let me explain. [9] In this case, the complainant’s evidence was that sexual contact with R.P. had occurred on one specific occasion. She tied thatoccasion to a particular instance in which she was left alone with him because her mother had taken the complainant’s younger sister formedical treatment.

When the mother testified, she confirmed that she had taken the younger child, who was an infant at the time, to betreated for thrush. [10] R.P. testified that he did not recall the younger child ever having had thrush. However, he agreed that there were times theyounger child had been taken to appointments with a doctor. He also agreed that, when the mother took the younger child to the doctor, hewould stay home alone with the complainant. He flatly denied having engaged in any sexual contact with the complainant. [11] In the Trial Decision, the trial judge began by thoroughly reviewing the evidence.

In the course of doing so, he made severalobservations about R.P.’s testimony, including that it “was not long on detail” and that “much of his direct examination was premised on awrong timeline” which was not corrected until cross-examination (at para 19). He also noted that R.P. acknowledged having spent a fairamount of time alone with the complainant. [12] After reviewing and summarizing all of the evidence, the trial judge instructed himself on the law, including setting out theelements of the offences that the Crown needed to prove and reminding himself of the requirement for proof beyond a reasonable doubt.

Healso self-instructed appropriately on the approach to assessing the testimony of witnesses and, in doing so, explicitly recognized the need toconsider both credibility and reliability and the need to be alive to the challenges inherent in assessing the reliability of evidence given byyoung children. [13] Next, the trial judge addressed the approach he was required to take when considering testimony given by an accused person.

Hespecifically noted that where an accused provides exculpatory evidence “the presumption of innocence and the corresponding high standardof proof require a court to approach such evidence in a particular way” (at para 39). He referred to the Supreme Court of Canada’s decisionR v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], and set out in full the well-known instruction it provides for assessingexculpatory evidence given by defence witnesses (at para 42).

He followed that by citing various appellate decisions that have commentedon the proper application of W.(D.), including Hoskins, R v Van Deventer, 2021 SKCA 163, 407 CCC (3d) 291 [Van Deventer], R vGroshok, 2019 SKCA 39, R v Ryon, 2019 ABCA 36, 371 CCC (3d) 225, and R v Fogah, 2018 ONCA 564, 362 CCC (3d) 4.

Hesummarized what those cases stand for by recognizing “two central principles”, the first of which is that a trier of fact “cannot engage in asimple credibility contest between the principal Crown witness and the accused”, and the second being that a trier of fact cannot considerthe testimony of the accused in isolation but, instead, “must have regard to all the trial evidence” when making credibility assessments (atparas 44–45). [14] In this portion of his review of the governing law, the trial judge also quoted a passage from Van Deventer, in which Tholl J.A.,writing for the Court, stated as follows: [25] A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejectingthe testimony of an accused, when considered in the context of the entirety of the evidence.

As long as a trial judge is mindful of the burdenof proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted tothe extent that it leaves no room for reasonable doubt.

However, this does not address the issue of whether a finding of credibility andreliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused. [15] After his exhaustive self-instruction, the trial judge analyzed the evidence, noting that a careful assessment of the testimony ofthe three central witnesses – the complainant, her mother, and R.P. – was necessary.

He concluded that he had “no concerns about thecredibility or reliability” of the mother’s evidence, because it was given clearly and in a straightforward way, and also because he wassatisfied that she “was able to set aside any resentment she may harbour [towards R.P.] and testify truthfully” (at paras 51–52). In this way,the trial judge directly confronted the arguments R.P. had advanced to suggest that the mother’s evidence should be regarded withsuspicion. [16] The trial judge took the same approach with respect to his analysis of the testimony of the complainant.

He stated that he hadassessed her evidence bearing in mind the principles set out in R v Marquard, (SCC), [1993] 4 SCR 223 and R v Slatter,2020 SCC 36, 452 DLR (4th) 1. He also addressed head-on the arguments R.P. had made regarding the reliability concerns raised by thecomplainant’s young age and the possibility that she could have been influenced by improper interview techniques. In that respect, the trialjudge found nothing in the evidence to suggest that improper techniques had been employed when the complainant was interviewed.

Healso observed that, although her young age was a factor that may be seen as diminishing the reliability of her evidence, he was still satisfiedthat it was reliable, because she had described a form of sexual activity about which she would be extremely unlikely to have anyknowledge, given her age, and because she was able to tie the occurrence of that event to a particular occasion where she would have beenalone with R.P. [17] Finally, turning to R.P.’s evidence, the trial judge observed that it was “little more than a bare denial of the allegations” and thateven though a “bare denial may well be plausible or even truthful”, evidence of that sort given by an accused person “may be rejected bythe trier of fact when considered in the context of all the trial evidence” (at para 60).

The trial judge then summed up his assessment of theevidence by saying: [62] The greater concern about the accused’s bare denial is how it should be considered in the context of all the evidence and how wellit stands up to the evidence that supports the case against him. For the reasons already described, I am satisfied that the evidence given by[the complainant] and her mother is both credible and reliable. Moreover, I am satisfied that, despite her age, [the complainant] had a goodmemory of the relevant events such that her evidence was persuasive, cogent and compelling.

As plausible as the accused’s bare denial may

be, and despite the absence of any meaningful inconsistency within it, I find that it does not stand up to the cogency of the case against him.I disbelieve and reject his explanation.

Based on the evidence presented by the Crown, I am also satisfied that it has proved each of theessential elements beyond a reasonable doubt. [18] When this concluding paragraph is read as part of the entire Trial Decision, and in conjunction with the evidence led at trial andthe submissions of counsel, I have no difficulty understanding why the trial judge concluded that R.P.’s evidence did not raise a reasonabledoubt about his guilt. [19] The mere fact that evidence given by an accused person can be described as plausible, in the sense that it is not patently false orincapable of being believed, does not automatically mean that it will raise a reasonable doubt about their guilt.

It is well-recognized in thejurisprudence that a trial judge does not need to identify any particular flaw – or, for that matter, implausibility – in the evidence given byan accused person in order to reject their testimony. Outright rejection of an accused’s evidence may properly be based on a considered andreasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence (see, for example: Van Deventer at para 21; and R v D.(J.J.R.) (2006), (ON CA), 215 CCC (3d) 252 at para 53 (Ont CA)). A fair reading of the trial judge’s reasonsdemonstrates that he employed this very approach.

He explicitly stated that, as the law requires, he had considered R.P.’s denial in thecontext of all the evidence and found that, plausible though the denial may have been, it simply did not withstand the cogency of the caseagainst R.P. The trial judge reached this conclusion because he accepted, beyond a reasonable doubt, the version of events put forward inthe evidence of the complainant and her mother.

In short, the trial judge’s reasons explain, in clear terms, that he rejected R.P.’s testimonyon the basis of a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence. [20] Moreover, in addition to containing a clear path of reasoning on the critical issue, the trial judge’s reasons include a thoroughself-instruction on the law, a concise and accurate

summary of the evidence, proper identification of the relevant issues, and fullengagement with those issues in the course of his analysis. They are more than adequate to permit effective appellate review. [21] Accordingly, in my view, R.P.’s appeal must be dismissed. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Schwann J.A.” Schwann J.A.