This week’s top three summaries: R v Cowan, 2022 ONCA 432: #bias, R v DMG, 2022 NSCA 42: Benefit of #doubt, and R v WDM, 2022 SKCA 64: complainant #animus

This week's top cases deal mostly with appellate issues. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v  Cowan, 2022 ONCA 432

[June 1, 2022] Appeals: Reasonable Apprehension of Bias [Reasons by J.C. McPherson J.A., with M. Tulloch and P. Lauwers JJ.A. Concurring]


This case is noteworthy for two reasons. First, the court says defence is entitled to disclosure of an agreement between the Crown and judge that they would not appear on a case. It is not sufficient to simply indicate that prosecutor and the judge had a close relationship, when such an agreement exists it must be disclosed. Second, the prosecutor having drinks and dinner with the crown after a conviction verdict from a jury excluding defence counsel at which the trial is discussed raises the prospect of a reasonable apprehension of bias. While friendships between the bench and the bar are not uncommon, such relationships can be sufficient to displace a appearance of impartiality particularly when socializing is connected to events on a certain file.

A. Introduction

[1] The appellant was convicted of second degree murder following a trial by judge and jury. The trial judge imposed a sentence of life imprisonment with a 10- year period of parole ineligibility.

[2] The appellant advances five grounds of appeal against his conviction. The principal ground of appeal, anchored in a fresh evidence application, is that there was a miscarriage of justice at his trial because there is a reasonable apprehension of bias relating to the trial judge.

B. Facts

(1) The parties and events

[3] The appellant and Edward Witt had been best friends for many years. They often gambled together at the Windsor Casino, as they did on Saturday, October 20, 2012. They were there for several hours and each drank seven beers. Mr. Witt lost about $5,500.

[5] On the outskirts of Leamington, at 1:40 a.m., the appellant purposely drove the truck off the road at speeds between 122 and 154 kilometers per hour, ascended a steep embankment, and flew through the air. The truck crashed into the second floor of a nearby building and fell to the ground.

[6] Mr. Witt died from his injuries six days later. The appellant survived but suffered serious brain injuries.

(2) The Trial

[8] ...The defence submitted that Witt died as a result of a suicide pact that he and the appellant entered into that night and the appellant should therefore be acquitted.

[9] On August 23, 2017, after two days of deliberation, the jury returned a verdict of guilty of second degree murder...

[10] The appellant advances five grounds of appeal against his conviction:

  1. There is a reasonable apprehension that the trial judge was biased and this resulted in a miscarriage of justice.

D. Analysis

(1) The reasonable apprehension of bias issue

[11] The appellant contends, on the basis of fresh evidence that came to light after the jury’s verdict but before the sentence was imposed, that he can establish that there is a reasonable apprehension of bias in this case relating to the friendship between the trial judge and Crown counsel.

[12] The appellant makes two separate arguments relating to this ground of appeal: (a) the trial Crown counsel made inadequate disclosure to defence counsel of the nature and extent of his friendship with the trial judge, thereby preventing defence counsel from properly considering whether to object to the trial judge presiding at the trial; and (b) the trial judge’s decision to attend a post-conviction, but pre-sentence, ‘drinks’ meeting with the prosecution team at a local restaurant immediately after the verdict was announced, and the trial judge’s decision immediately thereafter to go to dinner with only the trial Crown, taken alone or together, rises to the level of establishing a reasonable apprehension of bias.

[13] I will consider these two submissions in turn.

(a) The Crown disclosure on the trial judge/Crown counsel friendship issue

[14] The Crown and the trial judge met during their first appearance on the same case in 2012. Since then, the Crown has attended social functions at the trial judge’s home on seven or eight occasions and is a regular fixture at her family reunions.

[15] The Crown disclosed this friendship to the defence as soon as he learned that the trial judge would be presiding. He did so twice more before trial and raised it on the record after the trial judge’s opening instructions to the jury. Counsel for the defence consented to proceeding before the trial judge.

[16] However, unbeknownst to the appellant, the Crown and the trial judge had agreed, because of their friendship, not to appear on the same case after an appeal in 2016, less than two years before the appellant’s trial. Further, the Crown did not tell the appellant that he attempted to have the case reassigned to another Crown after learning that the trial judge would preside.

[17] The appellant argues that the Crown’s failure to disclose the extent of his friendship with the trial judge, especially when considered against their agreement not to appear on the same case, occasioned a miscarriage of justice.

[21] In my view, the potential for a biased trial is “relevant information” that could have assisted the appellant in making a full answer and defence: see e.g., R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 63; R. v. Esseghaier, 2021 ONCA 162, at para. 26. The Crown’s agreement not to appear before the trial judge and his attempts to have the file reassigned indicate a real risk that the appellant was stepping on to a tilted field. The fairness of his trial depended on him knowing this disadvantage. The Crown should have informed him. He failed to do so and lost sight of his responsibility to the administration of justice in the process.

[22] The respondent relies on Wellesley Lake Trophy Lodge Inc. v. BLD Silviculture Ltd., 2006 BCCA 328, to argue that the Crown is not bound to disclose a prior relationship with the trial judge. In that case, Low J.A. found that no apprehension of bias arose from counsel participating in group bike rides with the trial judge. Their friendship was simply not enough to overcome the strong presumption of judicial impartiality: at para. 17. Accordingly, says the respondent, there is nothing to justify disclosure here.

[23] Respectfully, this case does not assist the respondent. The explicit agreement between the Crown and the trial judge, which they both recognized, suggests a real threat of bias that is absent from the mere friendship in Wellesley Lake; it indicates the Crown’s understanding that his presence before the trial judge could jeopardize the appellant’s right to a fair trial. This risk was never communicated to the appellant. Instead, he was lulled into believing that the fairness of his trial was not in doubt.

[24] Accordingly, the appellant’s conviction is the result of a miscarriage of justice. It must be set aside.

(b) The post-conviction drinks/dinner issue

[25] In its factum Re: Fresh Evidence, the Crown accurately and fairly sets out the facts that give rise to this ground of appeal:

  1. The troubling conduct in this case included the following:
  • Almost immediately after the verdict and jury recommendations on sentence were completed, the judge contacted the crown to go for a drink.
  • Upon arriving at the lounge, the judge suggested that they move to a table by the window.
  • During drinks, the judge twice commented “as long as Mr. Ducharme [defence counsel] doesn’t walk in.” She also reported that she had asked other judges about Mr. Ducharme before the trial began.
  • They briefly discussed the case, including the judge and crown agreeing that the jury was intelligent and the crown remarking that the verdict was fair. The judge also poked fun at the crown for not being able to control his facial expression in court.
  • Drinks with the judge made the articling student uncomfortable, such that she immediately reported it to her principal the next morning.
  • It was not until the first appearance in court after disclosure of the post-verdict drinks that the crown disclosed to defence counsel that he and the judge went to dinner at the sports bar at the judge’s hotel after drinks were over.
  • Based on these events, the crown was suspended for ten days without pay. After arbitration, his suspension was reduced to five days.

  1. None of these facts are disputed.

[26] The test for reasonable apprehension of bias is:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... [T]he test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. ...”

See R. v. S. (R.D.), [1997] 3 S.C.R. 484, at p. 502...

[27] In my view, when one measures the nature and number of undisputed facts as set out above against this test, the legal phrase that comes to mind, immediately for me, is res ipsa loquitur: the reasonable apprehension of bias speaks for itself.

[29] Once together inside the restaurant, the trial judge referred to the absence of defence counsel at least twice, whether jokingly or not. The trial was discussed, albeit briefly. After the drinks meeting broke up, the Crown called the trial judge and invited her to dinner. The trial judge accepted and they went to a different restaurant. The four-person drinks meeting, in a public setting, lasted about an hour. The two-person dinner, in a public setting, lasted about two hours.

[30] Returning to the S. (R.D.) test for reasonable apprehension of bias, this constellation of facts over a three-hour period would inevitably lead the “reasonable and right minded person” to conclude that the trial judge might have been biased in the very serious trial that had just finished.

[31] Whether the trial judge was actually biased or not is not the issue. The mere appearance of bias is enough to satisfy the test. In this case, it is difficult to imagine how the “reasonable and right minded person” would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction on a very serious criminal charge.

[32] Lerren Ducharme (no relation to defence counsel Patrick Ducharme) began work as an articling student at the Crown office on July 31, 2017. The appellant’s trial started the same day. She attended the trial until the jury announced its verdict on August 23, 2017. She was invited to and attended the ‘drinks’ meeting that night. She is therefore an informed person, viewing the matter realistically and practically – and having thought the matter through.

[33] In the context of this appeal, Ms. Ducharme prepared an affidavit. She was cross-examined on this affidavit. In response to a question, she said:

I knew that there was something odd about the circumstances for sure because the case had not been completed. And I also knew that the trial judge would be determining the parole ineligibility of the accused. So that definitely was uncomfortable and felt wrong for me.

[34] Ms. Ducharme was right. I would allow the appeal on this ground as well.

E. Disposition

[36] I would allow the appeal and order a new trial.

R v DMG, 2022 NSCA 42

[April 4, 2022] NCRMD: Interaction between Drugs and Psychosis [Reasons by Boirgeois JA with Wood CJNS and Scanlan JA concurring]


Can a judge say the words "benefit of the doubt" in a judgment without meaning the legal standard of beyond a reasonable doubt? Perhaps it's not impossible, but after this decision, that judge should be crystal clear that they do not mean the legal standard. Here a new trial was, in part, ordered as a result.

Reasons for judgement:

[1] The appellant, D.M.G., was charged with single counts of sexual interference (s. 151) and sexual assault (s. 271) under the Criminal Code of Canada, R.S.C. 1985, c. C-46. The complainant was his 9-year-old cousin with whom he resided.

[2] It was undisputed that there had been physical contact between the two. The complainant testified the appellant would hug her from behind and move her body against him. She said she could feel his “pee-pee” pressing against her “bum- bum”. They were always fully clothed.

[3] The appellant testified at trial. He acknowledged he frequently hugged the complainant and engaged in horseplay with her but the contact was not sexual in nature or intent. He said the complainant was mistaken when she said she felt his penis pressing against her. He suggested she may have felt his cellphone, or a lighter, or perhaps his pocket knife.

[4] The trial judge, Judge Michael Sherar of the Nova Scotia Provincial Court, found the appellant guilty of sexual interference, contrary to s. 151 of the Code. However, the trial judge then gave the appellant “the benefit of the doubt” and acquitted him of sexual assault, contrary to s. 271.

[5] The appellant appeals his conviction for sexual interference. He says it is impossible to understand based on the record and his reasons how the trial judge arrived at the differing verdicts...

[7] In their submissions before this Court, both parties are of the view that given the evidentiary record, and in particular the entirely overlapping nature of the conduct complained of, it was not possible for a conviction to be sustained for sexual interference, yet an acquittal be entered for sexual assault.

[8] After having heard from the parties, the Court advised the appellant’s appeal was allowed, the conviction for sexual interference set aside and a new trial ordered on both counts...

The trial judge's reasons

[10] Immediately following the submissions of counsel, the trial judge rendered his decision. His oral reasons were brief. I will set them out in their entirety:

[DG] was an adult. She was a little girl. There's no concept of consent. Quite frankly, sir, I find you guilty under the provisions of Section 151. I'll give you the benefit of the doubt on the charge under Section 271 but you're guilty under the provisions of 151. Every person who, for a sexual purpose, touches directly or indirectly with a part of a body or with an object, any part of the body of a person under the age of 16 years is guilty of an offence punishable on summary conviction.


[11] To resolve the appeal and cross-appeal, there are only two issues that the Court needs to address, namely:

  1. What did the trial judge mean when he gave the appellant “the benefit of the doubt” regarding the sexual assault charge?
  2. Are the trial judge’s reasons sufficient to permit appellate review?


What did the trial judge mean when he gave the appellant “the benefit of the doubt” regarding the sexual assault charge?

[14] As the Supreme Court of Canada has recently reminded us, in reading trial reasons where there are multiple interpretations, that which reflects a proper application of the law is to be presumed (R. v. G.F., 2021 SCC 20 at para. 79). I repeat the trial judge’s words for ease of reference:

[DG] was an adult. She was a little girl. There's no concept of consent. Quite frankly, sir, I find you guilty under the provisions of Section 151. I'll give you the benefit of the doubt on the charge under Section 271 but you're guilty under the provisions of 151. Every person who, for a sexual purpose, touches directly or indirectly with a part of a body or with an object, any part of the body of a person under the age of 16 years is guilty of an offence punishable on summary conviction.

[15] I reject the Crown’s submission that the word “doubt” should be viewed as the trial judge engaging in common, non-legal parlance. The trial judge was in the midst of explaining why a conviction was entered in relation to the sexual interference charge, and why an acquittal followed under s. 271. To accept the Crown’s argument, this Court would have to find the trial judge, in the midst of delivering his verdict from the bench, did not intend use the word “doubt” in its ordinary legal sense.

[16] In my view, to adopt the Crown’s submission, this Court would have to accept the trial judge adopted a laissez-faire approach to his duty to give reasons. However, doing so would be contrary to the presumption the trial judge was applying the law correctly—that is, a “doubt” was a reasonable doubt relating to the s. 271 charge, resulting in the acquittal.

[17] As noted earlier, the trial judge’s reasons were brief. However, I accept that when he said the “benefit of the doubt” resulted in the appellant’s acquittal, it is because the evidence did not establish all of the necessary elements to sustain a conviction for sexual assault beyond a reasonable doubt.

Are the trial judge’s reasons sufficient to permit appellate review?

[18] An appellate court’s approach to reviewing the sufficiency of the trial judge’s reasons is well-established. In R. v. R.E.M., 2008 SCC 51, Chief Justice McLachlin writing for the Court, summarized as follows:

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

[19] Having considered the evidentiary record, the submissions of the parties, and the trial judge’s reasons, I am of the view they are insufficient to permit effective appellate review. In reaching that conclusion, I note as follows:

  • The reasons suggest the trial judge was satisfied the touching was of such a nature that sexual interference was established. That is, the trial judge was satisfied beyond a reasonable doubt the appellant intended to directly or indirectly touch the complainant for a sexual purpose. Sexual interference is a specific intent offence (R. v. B.J.T., 2019 ONCA 694 at para. 37; R. v. N.F.D.W., 2021 NSCA 91 at para. 44);
  • The appellant’s acquittal for sexual assault means the trial judge was not satisfied the Crown had proven all the necessary elements of that offence beyond a reasonable doubt;
  • Given touching was acknowledged and the complainant’s age foreclosed any argument relating to consent, the only element upon which the trial judge’s doubt could have rested was whether the touching was “of an objectively sexual nature”;
  • It is clear from the submissions of defence counsel at trial that the nature of the touching was the central issue from the appellant’s perspective. The main argument advanced was that it was not sexual in nature, and the appellant’s evidence should give rise to reasonable doubt. The acquittal suggests the trial judge may have accepted this argument, but that is not clear. What is clear is that he had doubt about something, the existence of which precluded a conviction for sexual assault; and

[20] It is not clear how the trial judge was able to convict the appellant of sexual interference, when he expressed doubt in relation to the sexual assault offence. There is no logical path that explains how these differing conclusions were reached. I agree with the appellant and the Crown that the factual circumstances underpinning this matter are such that the differing verdicts cannot be reconciled on the basis of the reasons. In these circumstances, it was incumbent on the trial judge to explain how he was able to reach the differing verdicts. The reasons are insufficient as they do not permit effective appellate review.


[21] The appeal is allowed. The appellant’s conviction under s. 151 of the Code and resulting sentence are set aside. The Crown’s cross-appeal is dismissed.

R v WDM, 2022 SKCA 64

[May 31, 2022] Reasons for Judgment must deal with Animus of Complainant [Justice B. Jones]


Despite the recent comments of the SCC in G.F. that courts of appeal should not be "parsing imperfect or summary expression on the part of the trial judge", appellate courts are not shying away from overturning judges when they fail to explain how they came to a decision on a crucial issue in a trial. Here, the trial judge failed to account for an admitted animus of the complainant against the accused that was unrelated to the charges before the court. A new trial resulted.

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] ...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

[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 some detail the blanket with which she covered herself and the nightgown she was wearing.

[9] The complainant described W.M. as wearing orange shorts and a muscle shirt. Her testimony was that W.M. dropped his shorts 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 off the 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 also said 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 against W.M. She said she did so after seeing her sister go through a trial involving an alleged sexual assault committed by another of the mother’s ex-boyfriends.

[12] The cross-examination of the complainant was designed to raise doubt as to the reliability and credibility of her testimony. I will return to discuss some of this later in these reasons. However, one important point bears mention at the outset. The testimony of all three witnesses was that the complainant harboured great animus towards W.M. for reasons unrelated to the alleged assault.

[13] ...In cross-examination, the mother agreed that she “most likely” would have spoken poorly of W.M. after her break-up with him. The mother agreed that W.M. had treated the complainant differently than he had treated the sister, 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 he had been verbally abusive towards the complainant and that he had spanked the complainant harder than he spanked the sister. He acknowledged that he had made the complainant cry. W.M. denied that he ever showed the complainant his penis intentionally or masturbated on her.

C. Trial decision

[16] The trial occurred over two days. At the conclusion of submissions, the trial judge reserved his decision. He delivered an oral decision the next day. Apart from the recitation of the charges and self-instruction on R v W.(D.), [1991] 1 SCR 742, the following is the totality of the trial judge’s reasons:

The evidence respecting [W.M.]’s guilt comes from one witness, the complainant, [...]. She’s now 21 years old and is testifying with respect 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 reliability in 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 be sure, 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 to conclude beyond a reasonable doubt that the Crown has met its onus on each and every element of each of the two counts. Accordingly, I find the accused guilty of both counts in the Indictment.

III. The Issue

IV. Analysis

[18] A trial judge must deliver sufficient reasons for a verdict. It is “through reasoned decisions that judges are held accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done in a particular 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, 42 and 55, [2002] 1 SCR 869 and R.J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018) at 134).

[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 a trial 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, do they prevent appellate review? In other words, the Court [in Sheppard] concluded that even if the reasons are objectively inadequate, they sometimes 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, 2008 SCC 24, [2008] 1 SCR 788, the Supreme Court emphasized that the inquiry “should not be conducted in the abstract, but should be directed 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 the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”...

[22] ...McLachlin C.J. held that “it is generally reasonable to infer that the trial judge understands the basic principles of criminal law at issue 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 for reasons to deal with ‘troublesome principles of unsettled law’” (at para 47, citing Sheppard at para 55, points 9 and 6, respectively).

[23] ...There is a low 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] ...Finally, the defence submitted that the complainant’s animus towards W.M. was a reason to discount her credibility. It was argued that all of this, together with W.M.’s testimony denying that the event described by the complainant took place, 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 trial judge for accepting the complainant’s testimony, and rejecting his own denial, are found in the following passage from the judge’s reasons:

I have no hesitation in accepting the evidence of [the complainant]. It was cogent, believable, authentic, and in its own way searing. To be sure, 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 and reliability of the complainant’s testimony. The result, he says, is that the trial judge’s reasons are insufficient at law and a new trial is required.

[28] ...on the facts of this case, I do not consider the failure by the trial judge to specifically address the discrepancies in the complainant’s testimony as to her age, the time of day or time of year when the alleged incident took place, standing alone, to warrant appellate intervention. While they are matters that could have cast doubt on the complainant’s testimony, this was a child witness, and it was ultimately within the province of the trial judge to weigh these matters...

[29] However, there were other issues raised in the evidence that go beyond what can be fairly dismissed as simply being incidental to 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 up to 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 issues raised 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 stated that she felt towards W.M. As I have already noted, she testified that she had harboured significant ill will towards W.M. for reasons unrelated to the alleged assault. In this regard, the mother said that W.M. treated the complainant much more poorly than he treated the sister. The complainant testified that she felt unloved and unwanted by W.M. and singled out by him because she was not his biological child. She described him as being physically abusive with her for this reason. She felt he picked on her more than the sister. When she was asked 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 she thought about it every day. This was a central pillar of W.M.’s defence. He argued, with some force, that the complainant’s admitted animus towards him rendered her evidence suspect. Yet, I can see nothing in the judgment that would constitute even an indirect comment on this evidence.

[31] The defence also linked the issue of motive to other evidence. As adults, the complainant, the mother and the sister all lived together. 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 least some 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 the complainant had told her. This evidence also went unmentioned by the trial judge in his reasons.

[34] The existence of a motive to fabricate is germane to credibility. Justice Doherty put it this way in R v Batte (2000), 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 factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

[36] The evidence in this case went well beyond an absence of a motive to fabricate. As I have noted, the complainant stated that she hated 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, 2021 CanLII 58907, 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 had a 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]s in Ignacio, at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate” (at para 30).

[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 had a motive to fabricate an allegation “may substantially challenge the credibility of the complainant, which may be capable of raising a reasonable doubt”. Justice Voith later identified three risks that must be avoided where a trier of fact considers the absence of evidence of a motive to fabricate when conducting a credibility assessment. These are that (a) the “trier of fact must not equate the mere absence of evidence that a complainant has a motive to fabricate evidence with a proven absence of motive” (at para 31), (b) the “trier of fact must not consider that an absence of evidence of motive to fabricate, or even a proven absence of motive, conclusively establishes that the complainant 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 made the allegations they have or be under any impression that the accused has an onus to demonstrate that the complainant has a motive to fabricate evidence in order to achieve an acquittal” (at para 33). I emphasize these three points because of the existence in this case of an admitted 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 a trier of fact to consider motive to fabricate when there is evidence supporting its existence. In that case, the Alberta Court of Appeal found that 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 v Zapeda, 2018 ABCA 425 at para 10; R v Batte, 49 OR (3d) 321 at paras 119-121, 134 OAC 1 (CA). This applies 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 the appellant, 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 trial judge, the decision raises an important point. Where credibility is a central issue and there is evidence suggesting that a complainant may have 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 trial judge’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 complainant claims to have seen. At trial, the complainant testified that she saw W.M. ejaculate on her chest. At the preliminary hearing, she stated that she felt something land on her and later had wiped it off her chest and stomach and thought it was semen. When asked at the preliminary hearing 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.] had his penis in his hand and [she] closed [her] eyes”. This discrepancy was one of the cornerstones of the arguments made on W.M.’s behalf at 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.

[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...

...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).

[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 to even identify the key frailties, let alone explain how a finding that the Crown had proven its case against W.M. beyond a reasonable doubt can 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 judge to 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 may also 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 the basis of a misapprehension of the evidence.

[54] As explained by Doherty J.A. in R v Morrissey (1995), 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 of the evidence, or a failure to give proper effect to evidence” (at 218). Justice Doherty further explained that “[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, 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 that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced 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 Doherty J.A.’s observations. He also emphasized that Morrissey “describes a stringent standard”, that “must go to the substance rather than the detail” (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 this ground, a trial judge must be mistaken about the substance of material parts of the evidence and the misapprehension must play an essential part in the reasoning process” (Paproski at para 26, emphasis added). It has also been said that an appellate court “will interfere only where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part in the reasoning process, not just of the narrative” (S.R. at para 14, emphasis in original, referring to R v Cloutier, 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 the complainant’s testimony, on which the conviction of W.M. hung, can only be described as going to the central part of the case. This means that either the trial judge ignored this evidence – in which event he proceeded under a misapprehension of the evidence as a whole – or his reasons 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 safe convictions, particularly in matters involving sexual offences, are being overturned not for legal error “but on the basis of parsing imperfect 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 to shield insufficient reasons and potentially dangerous convictions from appropriate appellate scrutiny. Rather, I agree with Nordheimer J.A. when he stated, with specific reference to G.F., that it “does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone” as guilty of a criminal offence (C.G. at para 56).

[59] ...Whichever way it is viewed, a new trial must be held.