The Defence Toolkit – January 26, 2024 “Extrinsic Evidence”

This week’s top three summaries: R v R.M., 2023 BCCA 455: judicial #notice, R v S.C., 2023 ONCA 832: prior #consistent stmt, and R v Beauvais, 2024 ONCA 22: #possession alternative inference

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R v R.M., 2023 BCCA 455

[December 11, 2023] Limits of Judicial Notice or Extrinsic Evidence and Misuse of Plausibility as a Standard of Proof [Reasons by DeWitt-Van Oosten J.A. with Willcock and Voith JJ.A. concurring]

AUTHOR’S NOTE: This cases revolved around the trial judge's use of information from outside the court process to assess the credibility of the accused's evidence. In order to find the complainant children reliable and credible, she found that "children can and do fall asleep quickly after a traumatic event" to undermine certain credibility submissions of the defence. She also found that case law suggests that determined adult predators will find opportunities to abuse children and will successfully avoid detection to undermine the defence submission that the circumstances suggested in the Crown theory would require the accused to take very unlikely chances of being detected in the alleged crime. In short the Court of Appeal found these observations of the judge were not things that a court could properly take judicial notice of, particularly because of how close they were to the central issues of the case. The case outlines the law on judicial notice and extrinsic evidence. Finally, the use of the term "plausible" within the reasons raised a problem because that is not a defined standard in law as it relates to evidence. Consequently, describing evidence as plausible or not does not disclose a reason for its acceptance or rejection in a criminal trial. The continual use of this term in relation to witness evidence by the judge without defining it led to a second error leading to a new trial. 

Factual Background

[5] R.M. was charged with seven offences: (a) three counts of sexual touching contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 (counts 1, 2, and 6); (b) two counts of sexual assault contrary to s. 271 (counts 3 and 4); and (c) two counts of invitation to sexual touching contrary to s. 152 (counts 5 and 7).

[8] The Information (or charging document) did not particularize the sexual misconduct that underlies each count. Instead, the complainants each testified about multiple incidents involving R.M. that individually and collectively fell within the scope of the charged offences. As long as one incident was found to have been proved in relation to each complainant, the related count would be made out, assuming the Crown established the essential elements of the named offence beyond a reasonable doubt. This would include, where required, proof of a sexual purpose.

[9] It is not necessary for the appeal to set out the entirety of the evidence adduced at trial. Instead, it will suffice to summarize the facts recited by the trial judge in her reasons. I will supplement that summary with portions of the trial transcript where necessary.

Closing Submissions

[44] In closing submissions, trial counsel for R.M. described this case as one in which W.(D.) principles were of “paramount importance” (R. v. W.(D.) [1991] 1 S.C.R. 742 (S.C.C.), 1991 CanLII 93) [W.(D)]). Credibility would be central to the trial judge’s analysis.

[45] The defence argued that the complainants’ evidence lacked specificity. There were also material inconsistencies in their evidence and importantly, some of their claims or descriptions of what occurred with R.M. were “implausible”.

[46] After highlighting what he saw as particularly problematic aspects of the complainants’ testimony, trial counsel submitted the trial judge should have “… serious concerns and reservations about the credibility of the complainants, mostly on the basis of the implausibility of their evidence, but as well internal inconsistencies and contradictions with prior statements” (emphasis added).

[48] In its closing submissions, the Crown agreed with the defence that credibility was the primary issue in the case. Relying on R. v. W. (R.), [1992] 2 S.C.R. 122, 1992 CanLII 56, the Crown encouraged the trial judge to assess the complainants’ evidence keeping in mind that they testified about events which occurred when they were children. In response to defence arguments about “implausibility”, Crown counsel submitted the trial judge should not give those contentions much weight because: “… [the court] sees it regularly, sadly, situations where you think that makes no sense. Who would do that?”

Reasons for Conviction

[50] The trial judge began her reasons by reviewing the evidence. She then instructed herself on the legal principles she was bound to apply in assessing the case.

[51] This included the presumption of innocence and the Crown’s burden to prove all elements of the charged offences beyond a reasonable doubt. She reminded herself of the W.(D.) framework and she noted that if she did not know who to believe after a careful consideration of all of the evidence, she was obliged to acquit: RFJ at para. 159.

Issues on Appeal

[71] On appeal, R.M. alleges five errors. He says the trial judge:

a) improperly took judicial notice of matters extrinsic to the trial process that had a material impact on her credibility and reliability assessments;

b) erroneously decided the case on the basis of plausibility rather than proof beyond a reasonable doubt;

Analysis

[88] As stated, I consider it necessary to address only the first two grounds of appeal, which I will refer to as “judicial notice errors” and “plausibility concerns”.

Judicial Notice Errors

[89] R.M.’s first alleged error is that in her assessment of the evidence, the trial judge improperly invoked and relied upon information outside of (or extrinsic to) the trial process and treated that information as accepted facts without first asking whether it was proper to do so. Moreover, R.M. says the trial judge gave the defence no meaningful opportunity to challenge or rebut the extrinsic facts and it rendered the trial unfair.

Specific Complaints

[90] The first judicial notice complaint arises out of the trial judge’s assessment of C2’s evidence. The defence challenged C2’s testimony about sexual touching during a sleepover on a number of bases, including the plausibility of her evidence that although she was “really scared”, her heart was “racing”, and the incident was shocking and traumatic for her, she fell back asleep shortly thereafter.

[91] The trial judge rejected this challenge, in part, because she had “observed that children can and do fall asleep quickly after a traumatic incident”: RFJ at para. 202, emphasis added. In making this statement, it is unclear whether the trial judge was referring to observations made in cases over which she has presided, as legal counsel in practice, or in her personal life. On appeal, the Crown concedes it is likely the last of these three.

[92] A second and third alleged improper use of extrinsic information involves factual assumptions made about the behavioural pattern, the intentionality, and the detection of adults who perpetrate sexual abuse against children. R.M. says the trial judge accepted these assumptions as true and without exception.

[93] At trial, R.M. argued that the complainants’ evidence should not be believed, at least in part, because R.M. would not have had the opportunity to commit the offences given his work schedule. Moreover, he testified that he was rarely (if ever) alone with the complainants while they were in his house and given the way in which the three families tended to socialize together, there would likely be many others present when he interacted with the complainants, including their parents. In that context, R.M. said it is unlikely he would have committed the acts described by the complainants and not be seen.

[94] Specific to C2’s evidence about the humping incidents, which were said to have occurred “every few times” she was at R.M.’s house, the trial judge acknowledged it was “surprising” that R.M. would have committed these acts given the possibility of detection: RFJ at para. 204. However, she noted that the “case law is replete with similar stories”: RFJ at para. 204. She then cited from Justice Marchand (as he then was) in R. v. C.C.C., 2020 BCSC 1367 [C.C.C]. In rejecting an argument about limited opportunity in that case, Justice Marchand said: “History has shown that adults who perpetrate sexual abuse on children find their opportunities and avoid detection”: C.C.C. at para. 95.

[95] Later in her reasons, the trial judge again referred to the manner in which adults perpetrate sexual offences against children. This time, she invoked factual assumptions about the modus operandi of predatorial offenders while assessing the credibility of R.M.’s denial in relation to both complainants and when considering the potential corroborative effect of the testimony from the complainants’ parents. The trial judge accepted as “true” the parents’ testimony that they did not observe R.M. display any unusual or inappropriate conduct towards their children. However, she explicitly gave that evidence “very limited” weight “… because case law supports that a determined adult predator will find opportunities to abuse children and will successfully avoid detection”: RFJ at para. 227, emphasis added.

Governing Legal Principles

[96] It has long been recognized that trial judges may take judicial notice of facts that were not the subject of proof at trial, accept those facts as true, and rely on them in deciding the case.

[97] As explained in Introducing Evidence at Trial: A British Columbia Handbook, 4th ed. (Vancouver, Continuing Legal Education Society of British Columbia, 2020) at 265–266: “The principle underlying judicial notice is that parties should not have to spend time proving things that are generally known and accepted or that are easily obtained from authoritative standard reference material” (emphasis added).

[98] Judicial notice “expedites the process of the courts, creates uniformity in decision-making and keeps the courts receptive to societal change …”: Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th ed (Toronto: LexisNexis Canada, 2022) at s. 19.25.

[99] For example, the Supreme Court of Canada has taken judicial notice of the history of colonialism and how that history continues to translate into disproportionate rates of incarceration for Indigenous peoples: R. v. Sharma, 2022 SCC 39 at para. 55, citing R. v. Ipeelee, 2012 SCC 13 at para. 60.

[100] Canadian courts have also taken judicial notice of the systemic and background factors affecting Indigenous peoples, including displacement and residential schools: R. v. Parranto, 2021 SCC 46 at para. 80, citing Ipeelee at para. 60 and R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 at para. 83.

[101] In R. v. Le, 2019 SCC 34, the Supreme Court of Canada held that “[e]vidence about race relations … can be derived from ‘social fact’ or the taking of judicial notice”: at para. 71. The Court then took judicial notice of the “… disproportionate policing of racialized and low-income communities …”: at paras. 97, 260.

[102] It is clear from these cases that judicial notice is not extraordinary, and that it can play an accepted and important role in the litigation process. However, judicial notice operates in the context of an adversarial system. Of critical importance to that system is the long-settled “principle that the opposing party must have the opportunity to challenge all facts that are not self-evidently beyond dispute”. Consequently, a court’s authority to take judicial notice is limited to “ensure that a fact accepted as true without further proof actually arises from a common understanding or within a common frame of reference”: Introducing Evidence at Trial: A British Columbia Handbook at 266. See also S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada Limited, 2013) (updated 2023) at § 26:7.

[103] When a court takes judicial notice of an extrinsic fact, it dispenses with the need to prove the fact and accepts it as having been established: R. v. Williams, [1998] 1 S.C.R. 1128 (S.C.C.), 1998 CanLII 782 at para. 54. The party that seeks to rely on the fact will not bear the burden of proving it. Once this occurs, there is no room to rebut the fact or to test it through cross-examination: R. v. Zundel (1987), 35 D.L.R. (4th) 338 at 391 (O.N.C.A.), 1987 CanLII 121, leave to appeal ref’d, 20310 (04 June 1987).

[104] Accordingly, to preserve trial fairness, the law holds that the closer an extrinsic fact lies “to the dispositive end of the spectrum”, the more stringent the requirements for taking judicial notice: R. v. J.M., 2021 ONCA 150 at para. 33 [J.M.]; R. v. Spence, 2005 SCC 71 at paras. 60–61.

[105] Where a fact is dispositive of an issue in dispute, a judge may only take judicial notice where: (1) the fact is clearly uncontroversial and beyond reasonable dispute; or (2) it is capable of immediate and accurate demonstration by resort to readily accessible and accurate sources: R. v. Find, 2001 SCC 32 at para. 48; Le at paras. 84–85.

[106] The standard for taking judicial notice is less strict in circumstances where an extrinsic fact is relied upon solely for context. When a fact will “… merely paint the background to a specific issue … courts will usually take judicial notice … and the threshold is lower”: Le at para. 85.

[107] Importantly, where an extrinsic fact falls in the middle of the spectrum, in that it may not be dispositive, but does more than “merely paint the background”, a trial judge must not take judicial notice of it without first asking whether that fact “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics in the original.

Discussion

[108] In alleging judicial notice errors, R.M. relies heavily on the Ontario Court of Appeal’s decision in J.M.

[110]....The appellant encouraged the trial judge to find the complainant’s evidence not credible because among other things, it was implausible that she would not have distanced herself from the appellant after the incident in the car: at para. 14. The trial judge rejected this submission for several reasons. One of the reasons arose out of his own experience as a lawyer (at para. 44):

… In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace. I am confident that trial and appellate judges, and counsel who deal with these cases, would agree. Despite such strong after-the-fact evidence of association, juries have been known to convict in these circumstances.

[Emphasis from original removed.]

[111] The Ontario Court of Appeal held that the trial judge erred in drawing on his own experience in this way....

[51]....The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule … As this court [has] cautioned … "a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more." Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge …

[53]....By the time of his reasons, the trial judge had drawn on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes, instances in which a complainant fails to distance her or himself from the abuser are not unusual but "commonplace," a conclusion approximating a form of generalization.

[112] A similar error was found to have occurred in C.G., another decision from the Ontario Court of Appeal.

[114] In addition to challenging the complainant’s evidence generally, C.G. urged the trial judge to reject the Crown’s case on grounds that he had no opportunity to commit the offences without being detected. He worked night shifts and was only home two nights per week. When he was home, he spent the nights with his spouse. His wife was a light sleeper and she would have woken if C.G. left their bed. The floors in the house were also creaky: at paras. 44–46.

[115] When responding to this submission during closing arguments, the trial judge said this (at para. 45):

As far as why would he take that risk, I think sex offenders take incredible risks all the time and, so you, I mean, you hear, well why would he ever take that risk when somebody was next door or whatever it was, but that’s just the nature of those – of that type of offence, and that’s why in this court, the majority of the cases that we hear are sex offences … Because they’re prepared to take those incredible risks.

[Emphasis added.]

[116] In ordering a new trial, the Ontario Court of Appeal accepted that trial judges are “… entitled to reject an implausibility argument that is based on the unlikelihood that the accused would have taken the risks required to commit the offence with which they are charged”: at para. 46. However, they cannot do so by taking judicial notice of a sweeping contention as if it were a fact, based on their personal recollection and without a proper inquiry:

[46] … Even if the trial judge was not intending to express a universal truth, he was at least of the view that incredible risk-taking is commonplace. If that was the trial judge’s approach, then he erred in doing so … judicial notice cannot be taken of such a contention as if it was a fact. Assuming such a fact could be established, it would require a proper evidentiary foundation. A third possibility is that the trial judge was relying on his personal knowledge or experience as proving that fact. This also would be an error. A trial judge cannot judicially notice a fact within his or her personal knowledge unless the criteria of notoriety or immediate demonstrability are present …

[Emphasis added.]

[117] R.M. says the trial judge made the same error in this case. I agree.

[118] As I read her reasons, the trial judge assessed C2’s testimony about the sleepover, the evidence from the complainants’ parents, and the overall credibility of R.M.’s denial of sexual touching by testing that evidence against factual assumptions about how people conduct themselves in a particular context that she accepted as true, and which were drawn from her personal experience extrinsic to the trial process, or from “stories” or factual narratives that had been proved in other cases. [Emphasis by PJM]

[119] The trial judge assessed the credibility and reliability of C2’s evidence about the sleepover and rejected the defence challenge to that evidence by measuring the credibility and reliability of C2’s testimony against the fact that children “can and do fall asleep quickly after a traumatic incident”: RFJ at para. 202. As noted, the Crown concedes this fact was accepted by the trial judge based on her personal experience in observing children. It was not established by evidence at the trial, expert or otherwise.

[120] In assessing R.M.’s denial of sexual offending based on limited opportunity to commit the offences and inconsistency between the nature and frequency of the interactions described by the complainants and the fact that none of the parents observed anything unusual, the trial judge assigned “very limited” weight to credible Crown evidence that was potentially supportive of R.M.’s defence because she accepted and importantly, she instructed herself, that “... a determined adult predator will find opportunities to abuse children and will successfully avoid detection”: RFJ at para. 227.

[121] The latter fact, as articulated by the trial judge, presupposes a particular intention to search for opportunities to offend and success in avoiding detection. Moreover, it appears to have been accepted as true, universal, and without exception. It was drawn from the trial judge’s understanding of factual matrices proved in other cases, including C.C.C. The trial judge’s reliance on this fact not only assumed that R.M. fit the profile or prototype of a “determined adult predator” before any determination of his guilt, but assumed that because of this profile, he would conduct himself in a particular way (find opportunities to abuse), and importantly, he would successfully avoid detection.

[122] I agree with R.M. that in both scenarios, the trial judge used extrinsic facts as makeweights, which then had the effect of bolstering the credibility and reliability of C2’s description of the sleepover and devaluing the exculpatory potential of R.M.’s testimony in relation to both complainants, as supported by the parents’ evidence. Moreover, she did so without asking whether those facts were properly the subject matter of judicial notice and without providing R.M. a meaningful opportunity to address the issue. This was an error.

[123] As aptly noted in R. v. Ururyar, 2017 ONSC 4428 at para. 58, “… witnesses [in a criminal case, including the accused], are entitled to have their credibility [and reliability] assessed on the basis of the evidence in the case, rather than [with reference to accepted factual assumptions] about human behaviour that have been derived from a trial judge’s … reading of social science literature”, their personal experience or, I would add, findings made in other cases.

[124] It is a “… fundamental tenet of our criminal justice system … that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons”, or what has been proved elsewhere: R. v. Sekhon, 2014 SCC 15 at para. 49. To hold otherwise improperly burdens the accused to show that they do not fit the profile of accused people in other cases or that the circumstances of their case are distinguishable, such that the findings made elsewhere have no application. This amounts to an erroneous reversal of the burden of proof (Sekhon at para. 50) and is obviously incompatible with the presumption of innocence.

[127] As explained in R. v. Pastro, 2021 BCCA 149, findings of fact and credibility assessments should not “… rest on a subjective assessment of what a hypothetical complainant or accused might reasonably be expected to do in the circumstances, but on what the evidence establishes the complainant and accused did or did not do in the context of the case being tried”: at para. 42. See also R. v. J.C., 2021 ONCA 131 at para. 58.

[136] I also do not agree that in making the impugned statements, the trial judge in this case was simply applying common sense. I would not describe the statements as being “derived from the common experiences of life”: R. v. H.W.J., 12 B.C.A.C. 81 (B.C.C.A.), 1992 CanLII 5995 at para. 38.

[137] Specific to the second of the impugned extrinsic facts, I accept it is likely uncontroversial and cannot reasonably be disputed that child sexual abuse often happens in private and often goes undetected. As such, the fact that particular acts of alleged sexual touching have not been witnessed or detected by others, even where those acts occurred in close proximity to them, does not mean that a trial judge cannot accept the allegations as true. Non-detection is not determinative of the issue and standing alone, it does not invariably give rise to a reasonable doubt. In my view, that was the point made in C.C.C. and in R. v. E.A.G., 2020 BCSC 1691, another case cited by the Crown.

[138] However, this is not the fact the trial judge took notice of. She accepted that “determined adult predator[s]” will search out opportunities to abuse children and will successfully avoid detection. These are very specific factual assumptions made about the behaviour of a particular type of offender, the accompanying intention, and their detectability. The logical effect of accepting these assumptions as factual truths and weighing potentially exculpatory evidence against them, is that irrespective of the particular circumstances of the case, testimony that no one saw an accused who is charged with sexual offending against children do anything unusual or detected sexual misconduct will have no evidentiary value.

[139] I appreciate there can be a fine line between matters of common sense and human experience (a form of tacit judicial notice) and matters that properly engage the strictures of the judicial notice framework. It is not always easy to distinguish between the two.

[140] However, therein lies the importance of the framework and adherence to the analytical guidance provided in cases such as Spence.

[141] Where it is unclear whether a certain fact is properly the subject matter of judicial notice and that fact is either dispositive of a contested issue or falls somewhere between dispositive and mere background, a trial judge must not rely on the fact without first asking whether it “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics omitted.

[143] In the circumstances of this case, I consider it plain from the trial judge’s reasons that she relied on her personal observations of children falling asleep after a traumatic event and on factual assumptions made about “determined adult predator[s]”, for a substantive purpose. She did so without asking herself (or the parties) whether these accepted facts were properly the subject matter of judicial notice. Then she proceeded to assess the credibility and reliability of adduced evidence and to determine its probative value, or her possible use of it, based on consistency or inconsistency between that evidence and the accepted facts.

[148] The credibility and reliability of C2’s evidence about the sleepover and the impact of R.M.’s denial on the complainants’ evidence, generally, were key issues in this case and a matter of significant dispute. At trial, both parties agreed that the outcome of the prosecution would stand or fall with the trial judge’s credibility and reliability findings. Indeed, as correctly stated in R.M.’s factum, the trial judge ultimately found that the credibility and reliability of the complainants’ evidence “… positively undermined R.M.’s testimony and prevented it from raising a reasonable doubt” (emphasis added). In other words, she concluded that R.M.’s evidence could not stand in light of the cogency of the complainants’ testimony: Redden at para. 81.

[149] Given this emphasis, I consider the impugned facts to lay close to the “dispositive end of the spectrum”: J.M. at para. 33. They were invoked in relation to a central issue—credibility. At the very least, they fell somewhere in the middle. Before relying on them to assess credibility, reliability, and the value of evidence that carried the potential to support R.M.’s defence, the trial judge was required to ask herself whether the facts, as invoked and framed by her, “… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …”: Spence at para. 65, italics removed. She did not conduct this inquiry. Nor did she provide R.M. with a meaningful opportunity to address the issue, including whether it was proper to evaluate his evidence and potentially exculpatory evidence adduced by the Crown applying the profile of a “determined adult [sexual] predator” before a finding of guilt, and to measure the worth of this evidence with that classification in mind. In my view, the Ontario Court of Appeal’s judicial notice analyses in J.M. and C.G. are apposite.

[150] Having found legal error, the next question is whether the errors were palpable and overriding. If they were, this Court has authority to intervene with the trial judge’s credibility and reliability assessments unless the errors are saved by the Crown’s invocation of the curative proviso.

[151] Having carefully considered the issue, I accept that the trial judge’s assessment of C2’s evidence about the sleepover was not grounded exclusively or even predominantly in her reliance on the fact about a child’s capacity to fall asleep quickly after a traumatic event. This was but one factor she considered in her overall assessment of the evidence surrounding this allegation.

[160] I do not consider that the trial judge’s use of the first of the impugned facts went to the core of her assessment of C2’s evidence or eroded the credibility finding overall. As such, I am satisfied this error is properly characterized as harmless for the purpose of the curative proviso.

[161] I have reached a different conclusion about the error in respect of the second extrinsic fact.

[169] In my view, the particular circumstances and the overall context of this case were such that it was incumbent upon the trial judge to carefully analyze the probative value of the parents’ testimony in light of the entirety of the evidence and to ask whether this testimony, coupled with R.M.’s denial, raised a reasonable doubt about the complainants’ allegations, in whole or in part. This is especially so given the conclusion she reached about C1’s description of the groping incidents, which included R.M. “pulling” C1 away from others who were present for the specific purpose of offending: RFJ at para. 181. The trial judge found that this evidence was insufficiently reliable to ground a conviction. She asked whether her conclusion on reliability undermined C1’s “honesty” in respect of the other two experiences described by her: RFJ at para. 183. What she did not ask is whether this finding, considered alongside the parents’ testimony and R.M.’s denial, impacted her assessment of the case as a whole and raised a reasonable doubt.

[170] Rather than engage in a close analysis of what impact, if any, the parents’ evidence had on her assessments of credibility and reliability generally, the trial judge instructed herself that this evidence attracted “very limited” (or negligible) weight because the behavioural pattern, intentionality, and successful non-detection of “determined adult predator[s]” rendered it inconsequential: RFJ at para. 227. She presupposed that R.M. fit the profile of a “determined adult predator” and as a result, assumed he would conduct himself in a particular way and not be detected. Consequently, the fact that the complainants’ parents saw no interaction of concern had no evidentiary value, irrespective of the circumstances.

[171] The Crown says the reference to “determined adult predator[s]” did not play a material role in the trial judge’s overall analysis. Moreover, the trial judge did meaningfully consider R.M.’s arguments about limited opportunity. The Crown contends that in advancing this ground of appeal, R.M. has focused on the impugned statements in isolation and asks this Court to do precisely what G.F. warns against—parse the reasons in a search for error.

[172] I disagree. I accept that the trial judge turned her mind to the parents’ observations when assessing C2’s evidence about the humping incidents (at paras. 203–205); however, even then, the impugned extrinsic fact came into play: at para. 203. Moreover, the parents’ evidence appears to have been disregarded in assessing R.M.’s denial, which did not have to be believed to raise a reasonable doubt, because of the trial judge’s self-instruction about the probative value of this testimony: RFJ at para. 227. Overall, the practical effect of invoking and relying on the second extrinsic fact is that R.M. was substantially deprived of potentially exculpatory evidence.

[173] I am satisfied the error was not only palpable, but overriding and materially affected the case as a whole.

[174] The trial judge found R.M. guilty of all counts because her “belief in the veracity” of the complainants’ evidence “weigh[ed] against” his denial: at paras. 228–229, emphasis added. The assessed strength of that denial, asserted in respect of both complainants, was tainted by the second judicial notice error. The parties agreed that credibility and reliability were central to the outcome of the case. R.M. was entitled to have his evidence properly assessed in the context of all of the other evidence, including the testimony of the complainants’ parents.

[175] That did not happen and in my view, it constitutes reversible error that is neither salvageable by G.F. nor the curative proviso.

“Plausibility” Concerns

[176] I turn now to R.M.’s second ground of appeal.

[177] As framed by R.M. and advanced before us, this ground is multi-faceted. However, for present purposes, it is necessary to address only one aspect of it. R.M. says the trial judge erred by finding that if the things described by the complainants were plausible, their evidence provided a sufficiently cogent basis from which to reject R.M.’s testimony and ground a conviction. Ultimately, this resulted in a lower standard of proof.

[183] The principal argument made under the second ground of appeal is not unlike the one advanced before the Ontario Court of Appeal in R. v. Kiss, 2018 ONCA 184. In that case, one of the challenges to a conviction for sexual assault was that the trial judge applied an incorrect standard of proof when he found the appellant guilty after stating he was satisfied the complainant’s evidence was “… in harmony with the preponderance of the probabilities …”: at para. 29. The Court held that in using this language, the trial judge was “… doing no more … than responding to defence challenges to the plausibility of [the complainant’s] account. The trial judge was saying that he found [the complainant’s] story to be plausible, i.e., in harmony with the way things can and do happen. It was appropriate for the trial judge to have done so”: at para. 31.

[184] I consider the same can be said here. The trial judge referred to the idea of plausibility mostly in response to suggestions by the defence that some of the events described by the complainants, including how they unfolded, were unlikely or inconceivable, and that their evidence should be rejected on that basis. From the reasons as a whole, I am satisfied the trial judge understood that the state’s burden in a prosecution is proof beyond a reasonable doubt, not whether the allegations were plausible. Indeed, this understanding is readily apparent from paras. 234–236 of the judgment, in which the trial judge expressed her conclusion that the Crown had proved all allegations other than the groping beyond a reasonable doubt.

[185] However, there is an aspect of the trial judge’s consideration of plausibility that, in my view, gave rise to reversible error. The Court raised this issue with counsel at the hearing of the appeal and they had an opportunity to address it.

[186] To start with, the trial judge did not define what she meant by the term “plausible” in her reasons.

[187] A definitive definition or interpretation of this term does not emerge from appellate jurisprudence. In Kiss, the term was defined as being “in harmony with the way things can and do happen”: at para. 31. In R. v. Cooke, 2020 NSCA 66, it was interpreted to mean “likely, probable or conceivable”: at para. 40.

[188] In my view, it is the latter interpretation that underlies the defence submissions at trial, as well as the trial judge’s response. The defence argued that certain aspects of the complainants’ testimony, including where and how the sexual touching occurred, were unlikely or even inconceivable, and as a result, their evidence was neither believable nor reliable.

[189] For example, the defence argued that the “sheer number” of the groping incidents described by C1 “ma[de] it implausible”. C1 testified that this conduct happened once a week for as many as six years, and yet no other witness saw any behaviour directed towards C1 (such as carrying her in strange ways or pulling her from a room), or any special attention paid towards her.

[190] As a second example, the defence argued that in order for the sleepover incident to have occurred, it would require that R.M. leave his bed, hope his spouse did not wake up, climb a set of stairs, pass the bedroom of his other children, and then enter the bedroom in which C2 was situated and begin to touch her, the whole time assuming she would not say anything. The defence asked: “what is the likelihood of this occurring?” From R.M.’s perspective, C2’s “evidence on this point [was] implausible”.

[191] In responding to the defence arguments, the trial judge appears to have adopted the same understanding of plausibility.

[196] In her testimony, C2 said that while riding the dirt bike, R.M. put his “hands down [her] pants”. R.M.’s hands “… started out on top of [her] pants [on her vagina] and then went in between [her] underwear and pants, went down [her] pants”. After “… [they] went away from everyone so [they] were out of sight … his hands went in between [her] underwear and pants”. In cross-examination, C2 agreed she was probably wearing “tight jeans”. Based on para. 208 of her reasons, the trial judge appears to have accepted that C2 was, in fact, wearing “tight jeans”.

[197] It is unclear to me precisely what the trial judge meant when she said C2’s description of how the sexual touching occurred was “less plausible”: RFJ at para. 208. Based on her other uses of this same term, I interpret the reasons as the trial judge having concluded it was “less likely” or “less conceivable” that R.M. “… was able to get his hand down the front of her tight jeans …”: at para. 208. (I pause to note here that C2’s evidence was inconsistent on this point, also stating that both hands were placed down her pants while riding the dirt bike, not just one.)

[198] The trial judge’s finding of “less plausible” is troublesome. It is one that, in my view, called out for greater analysis and explanation. R.M.’s ability to place one or both hands down the front of C2’s pants while on the bike was not a peripheral matter. To the contrary, it constituted the actus reus of the alleged sexual touching and there was no other evidence on point.

[199] If C2’s description of how the actus reus was committed was unlikely or inconceivable, it was incumbent on the trial judge to ask, analyze, and explain why this conclusion did not materially detract from the Crown’s proof of the allegation or the credibility or reliability of C2’s testimony, overall. Assessing credibility and reliability is a holistic exercise that “… involves assessing the plausibility and coherence of a given witness’s testimony throughout the course of the trial”: R. v. Goldfinch , 2019 SCC 38 at para. 123, Moldaver and Rowe JJ., concurring, emphasis added. A legally incorrect approach to material evidence runs the risk that the final step in the trial process, the overall weighing of the evidence to determine whether the Crown has met its high burden, will be flawed: R. v. B. (G.) , [1990] 2 S.C.R. 57 at 77 (S.C.C.), 1990 CanLII 115 [B. (G.)].

[200] At para. 208 of her reasons, the trial judge said this aspect of C2’s evidence did not “… alone … discredit her testimony”. However, this was a conclusory statement. Respectfully, there is no indication that the trial judge appreciated the critical importance of this evidence to the Crown’s burden of proving the essential elements of sexual touching, or the inconsistencies in C2’s evidence. I appreciate the latitude trial judges have in crafting their reasons; however, in my view, this was an issue for which R.M. was entitled to know why the concerns about C2’s evidence did not leave the trial judge with a reasonable doubt: Gagnon at para. 21.

[204] As with the first ground of appeal, I find this error palpable and overriding. Furthermore, I cannot say with confidence that had this aspect of C2’s evidence been properly analyzed, there is no realistic possibility a new trial would result in a different verdict specific to her allegations. Accordingly, the Crown has not met its “high” burden of showing the error was harmless: R. v. Sarrazin, 2011 SCC 54 at paras. 25–28.

[214] Accordingly, I would allow the appeal and set aside the convictions on all counts. I would order a new trial on counts 1, 2, 3, 4, 6 and 7 of the Information. The Crown having consented, I would enter an acquittal on count 5.

R v S.C., 2023 ONCA 832

[December 14, 2023] Use of Prior Consistent Statements [David M. Paciocco, J. George, and J. Dawe JJ.A.]

AUTHOR’S NOTE: Both the power of this variety of inadmissible evidence and its continual misuse in criminal trials continues to find expression in overturned criminal convictions by appellate courts across the country. This case provides a short pithy summary of the permissible and impermissible uses of prior consistent statements. Here, the prosecutor made specific argument that a prior Facebook post of the complainant was corroborative of her account and then the trial judge failed to give an appropriate limiting instruction that would have undermined this closing argument. 

R v Beauvais, 2024 ONCA 22

[January 12, 2023] Possession: Inferences Alternative to Guilt [David M. Paciocco, J. George, J. Dawe JJ.A.]

AUTHOR’S NOTE: This case involved some interesting arguments on possession of child pornography. The essential aspects of the facts involved a computer which everyone in a house had the password to and the presence of a virus on the computer that had the capability of altering the contents of the computer. The role of the trial judge in this circumstantial evidence case was to assess whether the Crown had disproved all reasonable possibilities alternative to guilt beyond a reasonable doubt. Here, the possibility that someone else downloaded and handled the child pornography was not discounted through the evidence and the trial judge did not provide reasons as to why someone else could not have done it. In respect of the virus, the Crown called no evidence to rebut the possibility that someone else, external to the residence, downloaded the material. Because the expert testified that the virus could execute commands from an attacker, this became a reasonable alternative to guilt that had to be negated by the evidence.