WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Slatter, 2019 ONCA 807

DATE: 20191008

DOCKET: C65248

Doherty, Pepall and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Slatter

Appellant

Robert J. Reynolds, for the appellant

Caitlin Sharawy, for the respondent

Heard: April 4, 2019

On appeal from the conviction entered by Justice Wolfram
    Tausendfreund of the Superior Court of Justice on December 18, 2017.

Trotter
    J.A.:

A.

introduction

[1]

The appellant, Thomas Slatter,
    was convicted of sexual assault, contrary to s. 271 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, and found not guilty
    of sexual exploitation of a person with a disability under s. 153.1. He was
    sentenced to 27 months imprisonment. He appeals against his conviction.

[2]

The trial judge found that, sometime between
    2009-2013, the appellant committed sexual assaults on the complainant, J.M., a woman
    in her early twenties with an intellectual disability.

[3]

J.M. was assisted in the community by an
    organization called Pathways to Independence (Pathways). She was placed with
    a couple, Mr. and Mrs. C., in a development called Kenron Estates near
    Trenton, Ontario.
The appellant and his wife, Heather, were neighbours
    and good friends with Mr. and Mrs. C.

[4]

J.M. testified that the sexual assaults occurred when she went
    dog-walking with the appellant. The assaults happened at various locations. The
    conduct ranged from fondling to unprotected intercourse. The appellant
    testified and denied any sexual contact with J.M. The appellants wife
    testified in support of his defence.

[5]

The appellant submits that the trial judge committed a number of errors
    in his reasons for judgment. He argues that the trial judge did not properly
    assess J.M.s reliability, erroneously found her evidence to be
    self-corroborating, and failed to explain why the defence evidence did not
    raise a reasonable doubt.

[6]

I would allow the appeal and order a new trial. As discussed
    below, the trial judges reasons suffer from several deficiencies which  taken
    together  foreclose meaningful appellate review. First,
the
    reasons fail to adequately address J.
M.s reliability. This was the
    central issue at trial. The appellant relied on the evidence of an expert
    witness called by the Crown who testified that J.M. was highly suggestible, a
    feature that was evident during one of her police interviews. This evidence is
    not mentioned, let alone addressed, in the trial judges reasons. Second, in an
    important passage in his reasons, the trial judge appeared to find that J.M.s
    evidence was self-corroborating, when it was not. Lastly,
the
    trial judge failed to explain why he rejected the evidence offered by the
    appellant and his wife. Indeed, the trial judge did not explicitly state that
    he rejected their evidence, although it is now clear that he did. His reasons
    for doing so remain a matter of speculation, impervious to review. It is for
    these reasons that the verdict must be set aside.

B.

factual overview

(1)

Introduction

[7]

J.M. was born in 1991. She was 26 years old at the time of trial. She
    was a few years younger when the events giving rise to this case occurred. The
    local Childrens Aid Society was involved in J.M.s life from a very early age.
    She was made a Crown ward as a child, and since turning 18 has received support
    from Pathways. J.M. was placed with Mr. and Mrs. C. at 17, and continued to
    live with them until she disclosed the abuse.

(2)

Expert Evidence

[8]

As part of its case, the Crown called Dr. Jessica Jones, a forensic
    clinical psychologist and professor of psychiatry. She was qualified to give
    expert evidence on the cognitive ability of adults with developmental disabilities
    and whether J.M.s disability affected her capacity to give consent in a social-sexual
    setting.

[9]

Dr. Jones diagnosed J.M. as having an intellectual developmental
    disorder. This was described as a mild disability, placing J.M.s intellectual
    functioning at the bottom two percent of the general population. Academically,
    J.M. functions at the level of someone in the range of 10-12 years. Nevertheless,
    she demonstrated strong communication skills at trial.

[10]

In terms of adaptive functioning, Dr. Jones said that J.M. requires a
    substantial level of supports day-to-day. Employees of Pathways testified that
    J.M. was unable to care for herself in terms of preparing her own food and
    taking medications. They also described J.M. as being very trusting and easily
    taken advantage of by others. These observations are consistent with Dr. Jones
    testimony on how these qualities are engaged in the context of consent. Dr.
    Jones explained that J.M. is capable of consenting to sexual activity. However,
    J.M.s ability to consent would be impaired by an unequal relationship with a
    person of trust or authority. In a social-sexual relationship with such a person,
    she may acquiesce more easily. As noted below, J.M. testified that she did not
    consent to any sexual activity with the appellant.

[11]

Dr. Jones also provided an opinion about J.M.s predisposition to being
    overly suggestible when questioned. In this case, the focus was on the manner
    in which J.M. was questioned by persons in authority about her allegations of
    sexual assault.

[12]

Generally, people with intellectual disabilities are highly predisposed
    to being more suggestible and [to] acquiesce. In Dr. Jones opinion, J.M. is
    in the 75
th
percentile for suggestibility within the overall
    population, [b]ut average compared to other people with intellectual
    disabilities. Suggestibility decreases if the subject of discussion is more
    personalized, significant and emotive to the person. Sexual assault would fall
    into this category. Moreover, if the information is both visual and verbal, the
    person is less likely to be suggestible, meaning that theyre able to recall
    that information more and less likely to change their answer.

[13]

Dr. Jones testified that a person like J.M. is more vulnerable to
    suggestibility when the questioner is a person in authority, like a police
    officer or a caregiver. Questioners must be careful to avoid asking questions
    that press for a particular response because a person with an intellectual
    disability may acquiesce and provide what he or she perceives to be the desired
    response. In other words, such an individual will be more likely to respond to
    a leading question by agreeing with what the questioner suggests, even when the
    suggestion is unintentional. The individual will have a heightened propensity
    to acquiesce and provide an affirmative response when he or she is uncertain
    about something.

[14]

Dr. Jones further testified that, when a highly suggestible person is
    questioned repeatedly, it may result in the provision of new information not
    previously disclosed, and/or by the modification or distortion of information
    given before. Because answers may be influenced by the content and presentation
    of the questions, it is difficult to assess the reliability of information
    provided unless there is an accurate record of the questioning that elicited
    the response.

[15]

Dr. Jones reviewed a transcript from J.M.s first interview with a
    police officer on September 10, 2013. Dr. Jones observed multiple examples of
    leading questions or forced-choice questions where J.M. changed or distorted what
    she had said before. But there were also examples where the information stayed
    the same. Dr. Jones explained that J.M.s level of suggestibility is not
    static, but rather depends on the facts and the question posed to her, whether
    it is pressured or not. She said that [t]here are numerous examples where [J.M.]
    stayed with the same answer and then numerous examples where she went back to
    [the] initial answer. Dr. Jones was not asked to provide examples of the
    phenomena she described. Defence counsel at trial did not ask for a recording
    or transcript of this interview to be entered into evidence.

(3)

The Sexual Assault Allegations

[16]

As discussed in more detail below, J.M. initially alleged that the
    appellant had touched her. Over time, the allegations developed into conduct
    far more serious and included allegations that she had been raped by the
    appellant.

[17]

The underlying context of the allegations was J.M.s involvement in
    walking the appellants dogs. J.M.s weight concerned Mr. and Mrs. C. They
    thought it would be good for J.M. if she were to walk the appellants dogs in
    order to get more exercise.

[18]

J.M. gave inconsistent accounts of walking the dogs. At one point in her
    trial testimony, she said that she never walked the dogs with Heather Slatter.
    At the preliminary inquiry, J.M. said she would sometimes walk the dogs with
    Heather. As she explained at trial, [O]nce in a blue moon. Thats what I mean
    by sometimes.

[19]

J.M. testified that most of the assaults occurred at locations in or
    around Kenron Estates. Below I summarize the allegations associated with each
    location.

(a)

The Melansons Home

[20]

Larry and Sherrie Melanson lived on Kenron Estates and were friends of
    the Slatters. J.M. said that the appellant checked in on the Melansons home
    when they were away in Myrtle Beach. J.M. went with the appellant on one of
    these visits. Once inside the Melansons home, the appellant removed J.M.s
    clothes, put his fingers in her vagina, and then fondled and sucked her
    boobs. She was laying on the bed at the time. J.M. said she did not want
    these things to happen. The incident ended when she told the appellant that
    they should get going. They returned to the Slatters trailer where she was
    offered a cold drink. She took one and left.

(b)

The Pooch Path

[21]

J.M. described driving with the appellant and the dogs to a part of a
    conservation area called the Pooch Path. They visited this location more than
    once. J.M. testified that the appellant sometimes brought a beige blanket. The
    appellant would touch her vagina (by putting two fingers inside) and her boobs.
    She also said that sometimes there [would] be sex included. This occurred off
    the path, among the trees and tall grass. The appellant took off J.M.s clothes
    and laid down the blanket. Then, J.M. explained, [H]e tries sticking it in me
    and [h]e succeeds. When this occurred, the dogs were either tied up or loose.
    J.M. said that the appellant sometimes used a condom; at other times he did
    not. The appellant would throw away the used condom and packaging in the tall
    grass.

[22]

J.M. said this happened more than once at several spots off the Pooch
    Path. She once said, Please dont to the appellant. The appellant once told
    her, If youre going to tell anybody, I will deny it.

(c)

Mr. and Mrs. C.s Residence

[23]

J.M. testified that the appellant sometimes came to her home when she
    was alone. J.M. described one incident when the appellant came over when she
    was cleaning the house. The appellant took J.M.s clothes off, and then his
    own, and had sexual intercourse with her. Similar incidents occurred on other
    occasions.

[24]

J.M. testified that the Slatters frequently visited Mr. and Mrs. C.s
    home on Friday nights to play cards. J.M. remained in her room. J.M. said that
    the appellant would leave the table to use the washroom and stop by J.M.s
    bedroom to touch her butt and boobs, sometimes above the clothing, and
    sometimes under. J.M. was cross-examined on her police statement in which she
    said that the appellant did not touch her when other people were around. In
    relation to these Friday night card games, she said: Most of the time it was
    just me and him.

[25]

On another occasion, the appellant let himself into Mr. and Mrs. C.s
    trailer and came into the bathroom where J.M. was showering. The appellant
    bathed her with a scrunchie". In cross-examination, it was suggested to
    J.M. that this did not happen because there would have been water all over the
    bathroom. J.M. agreed that there was, and that she had cleaned it up with
    towels afterwards.

(d)

The Dairy Queen Incident

[26]

The appellant did maintenance work. He invited J.M. to come with him one
    time when he was going to cut a lawn. He promised to take her to the Dairy
    Queen. J.M. said that the appellant [felt] me up while she sat in the
    passenger seat of his vehicle. He had one hand on the steering wheel and
    reached across with his other to touch her. In a statement to the police, J.M.
    said that the appellant touched her over her clothing; at trial, she said it
    was both under and over her clothing.

(e)

The Airbase Incident

[27]

J.M. testified that Mr. and Mrs. C. and the Slatters would socialize at
    the local air force base (CFB Trenton) some Friday evenings. The appellant volunteered
    by operating the BBQ while the others were inside the building. J.M. was
    allowed to be outside on these nights until an incident occurred. J.M. was
    texting on her phone when the appellant leaned over and kissed her on the
    forehead and cheeks. After that occurred, Mrs. C. told J.M. to stay inside. J.M.
    never returned to this event.

(f)

The Abandoned House

[28]

J.M. described other incidents at an abandoned building, which was a
    ten-minute walk from Kenron Estates. J.M. said they engaged in doggie style
    sex. The appellant had his hands on J.M.s hips and touched her breasts. J.M. was
    unsure of how many times it happened at this location.

[29]

In cross-examination, J.M. was asked about whether she saw a safe in the
    building. J.M. said that she never went inside the building because there was
    broken glass everywhere.

(g)

The Slatters Home

[30]

J.M. testified that the appellant sometimes had intercourse with her at
    the Slatters home, in the main bedroom. The appellant removed J.M.s clothing
    and his own and placed it on the floor. The appellant once told J.M. that, if
    she lost weight, she would be a skinny girl with big breasts.

(4)

Disclosure of the Sexual Assaults

[31]

At trial the defence argued that because of J.M.s level of
    suggestibility, she was influenced by others  perhaps unwittingly so  when
    she disclosed her allegations against the appellant. The appellant contends
    that, as J.M. spoke to various people, most of whom were persons in authority,
    she alleged increasingly serious sexual conduct. Consequently, it is necessary
    to review the sequence of disclosures in this case.

[32]

In July of 2013, J.M. had a discussion with her friend, A.C., at summer
    camp. A.C. testified that she and J.M. were discussing men that they liked or
    had sex with. During this conversation, J.M. said that there was a neighbour of
    hers with whom she had sex. J.M. reported that the neighbour kissed her and touched
    her inappropriately. J.M. smirked and giggled during this conversation. A.C.
    said that J.M. smiles a lot  thats just her. In cross-examination, A.C.
    adopted a previous statement in which she reported asking J.M. if she had
    wanted the sexual activity to occur. J.M. changed the subject without
    answering. A.C. did not report the conversation to anyone because J.M. did not
    say that the sexual activity was without her consent.

[33]

J.M. also testified about this conversation. She explained that she and
    A.C. were discussing stuff that happened to us. Although she could not recall
    her exact words, J.M. recalled telling A.C. that she was having sex with a
    middle-aged neighbour. On cross-examination, she denied making the story up.

[34]

In August of 2013, J.M. told Mrs. C. that the appellant had touched her
    breasts. Mrs. C. called the appellant to confront him with this allegation.
    J.M. said that she overheard the appellant on the phone and heard him say,
    [N]o maam, I didnt. The appellant and his wife confirmed that this happened
    in the way that J.M. described it. Mrs. C. did not testify at trial. There was
    no evidence as to the exchange between her and J.M. that preceded this
    allegation and the call.

[35]

On September 9, 2013, J.M. disclosed the sexual assaults to Stacey
    Callahan, a case worker with Pathways. A few months earlier, in July 2013, Ms.
    Callahan had asked J.M. if her relationship with the appellant was unhealthy.
    J.M. denied that it was. When Ms. Callahan met with J.M. and Mrs. C. on
    September 9, 2013, J.M. said, Youre right. Toms been touching me. J.M. did
    not provide any details at the time. However, Ms. Callahan learned that J.M.
    had disclosed the touching to Mrs. C. two to three weeks earlier.

[36]

The next day, September 10, 2013, Ms. Callahan took J.M. to see her
    supervisor at Pathways, Darlene Brennan. J.M. told Ms. Brennan what the
    appellant had done to her. Ms. Brennan called the police to report the matter.
    Ms. Brennan told the police that J.M. said she had been raped by the
    appellant. Ms. Brennan insisted that the word raped came from J.M. She denied
    that she was the first to use this word. Ms. Brennan acknowledged that this
    important detail was not recorded in her notes. However, she testified that
    J.M. would not use an expression such as sexual assault.

[37]

J.M. met with a police officer, Paul Maybee, that same day. The
    interview was recorded. This was the interview referred to by Dr. Jones. In
    this interview, J.M. told P.C. Maybee that she was having flashbacks of
    things that happened to her in the past. At trial J.M. said that she did not
    tell P.C. Maybee everything that happened. She said that she was uncomfortable
    because he is a male. J.M. had not expressed this concern about P.C. Maybee
    before trial.

[38]

Shortly after the interview with P.C. Maybee, the case was assigned to
    Detective Amy Simpson. Det. Simpson arranged to meet J.M., along with Ms.
    Brennan, at the Pooch Path on September 13, 2013. This was the first time Det.
    Simpson met J.M. The purpose of the meeting was for J.M. to point out where the
    incidents had happened. They walked along the path and J.M. pointed to various
    locations where she said she was sexually assaulted. The three also looked for
    condoms and packaging but were unsuccessful. Det. Simpson testified that, given
    the passage of time, she did not expect to find any such debris. Importantly,
    none of this encounter, which lasted for about an hour, was recorded.

[39]

Ms. Brennan took J.M. for an interview with Det. Simpson on September
    17, 2013. On the way, J.M. pointed to the abandoned house close to Mr. and Mrs.
    C.s residence and said the appellant sexually assaulted her at this location.
    There was no record of this conversation. J.M. then gave her formal statement
    to Det. Simpson.

[40]

Arrangements were made to have J.M. see a counsellor, Mary Joan Brinson.
    During these sessions Ms. Brinson took notes, which defence counsel used to
    cross-examine J.M. at trial. Ms. Brinsons notes indicated that J.M. said the
    abuse began shortly after she was placed with [Mr. and Mrs. C.], i.e., around
    four years earlier. Defence counsel pointed out this was inconsistent with
    J.M.s statement to Ms. Callahan  made just a few days earlier  that the
    assaults began in early 2013.

[41]

Confronted with this inconsistency, J.M. admitted that she told
    different things to different people. J.M. said she remembered more about the
    incidents as time went on. J.M. denied the suggestion that she made up the
    allegations against the appellant because she was often in conflict with Mrs. C.

[42]

J.M. was asked why, when Stacey Callahan first asked about her
    relationship with the appellant, she denied that it was unhealthy. J.M. said
    that, while she never wanted any of the sexual contact to happen, she liked
    walking the dogs.

(5)

Defence Evidence

[43]

The appellant accepts that the trial judge provided an accurate
    summary of the defence evidence in his reasons for judgment. I highlight
    several aspects of this body of evidence.

[44]

The appellant and his wife testified. Both gave evidence
    contradicting J.M. on the circumstances surrounding the alleged incidents. The
    appellant denied any sexual contact between himself and J.M.

[45]

The appellant testified that J.M. was vulnerable and subject to being
    taken advantage of by others. He thought J.M. acted as though she were 12-13
    years old. The appellant agreed that Mr. and Mrs. C. entrusted him with J.M.s
    safety.

[46]

While J.M. testified that the dog-walking occurred predominantly with
    the appellant and that she walked the dogs with Heather Slatter once in a blue
    moon, the appellant and his wife testified that Heather Slatter was more
    involved than the appellant. The appellant said that he and Heather Slatter had
    taken J.M. to the Pooch Path. Once he had been there alone with J.M. His wife
    knew about it.

[47]

The appellant and his wife checked on the Melansons home when they were
    away. The appellant denied ever taking J.M. with him on these short visits.

[48]

The appellant denied making the remark about J.M. becoming a thin
    girl with large breasts. He agreed that J.M. had weighed herself at his home,
    but stated it was at her insistence. Given that J.M. was walking their dogs to
    lose weight, it made sense that she wished to monitor her progress. Heather
    Slatter testified that J.M. made a habit of weighing herself at their home
    about once a month.

[49]

The appellant acknowledged being alone with J.M. at Mr. and Mrs. C.s home
    on two occasions. He went there because J.M. asked him to fix a closet on one
    occasion, and the toilet on another. He denied that any sexual activity took
    place. The appellant also acknowledged that he and his wife often played cards
    with Mr. and Mrs. C. on Friday nights. He acknowledged that he had seen J.M.s
    room but denied that he ever walked to J.M.s room to touch her.

[50]

The appellant agreed that he and J.M. walked the dogs to the abandoned
    house on two occasions. They once saw a deer, which J.M. acknowledged seeing.
    The second time they saw a large safe in the house. The appellant reported the
    details of both visits to his wife.

[51]

The appellant admitted taking J.M. to the Dairy Queen on the way home
    from a job. He denied touching J.M. Similarly, the appellant denied any
    impropriety at CFB Trenton. He said that he leaned over and asked J.M. whether
    she was texting her boyfriend. He denied kissing her. But he acknowledged that
    J.M. never returned to these gatherings because of what happened that night.

[52]

The appellant denied ever having condoms. Heather Slatter said there had
    been no condoms in their house for 30 years. The appellant denied that he owned
    a beige blanket or ever took a blanket to the Pooch Path. Heather Slatter said
    that they did not own a beige blanket; they only had dark green or blue moving
    blankets.

[53]

The appellant acknowledged the call from Mrs. C. concerning the
    allegation that he had touched J.M.s breasts. Heather Slatter was also aware
    of the call; however, she said that it did not concern her.

C.

the reasons for judgment

[54]

The trial judge found the appellant not guilty of sexual exploitation
    based on insufficient evidence of what the appellant said to J.M. during the
    incidents.

[55]

The trial judge concluded that the Crown had proved the offence of
    sexual assault. He found no inconsistency in the evidence of the accused or his
    wife and expressed no criticism of their evidence. However, after his
    examination of J.M.s evidence, many aspects of which the trial judge found had
    the ring of truth, he was satisfied of the appellants guilt beyond a
    reasonable doubt.

D.

issues on appeal

[56]

The appellant raises three issues on appeal, all focused on the adequacy
    of the trial judges reasons. The appellant submits that the trial judge erred
    by: (1) not properly assessing the reliability of J.M.s evidence and failing
    to address the expert evidence of her suggestibility; (2) engaging in illogical
    reasoning that led him to find that J.M.s evidence was self-corroborating; and
    (3) failing to provide reasons for rejecting the evidence of the appellant and
    his wife.

E.

analysis

(1)

Failure to Assess Reliability

[57]

The appellant submits that, while the trial judge thoroughly examined
    J.M.s credibility, he failed to address his mind to the reliability of her
    evidence, especially her propensity for suggestibility. He asserts that the
    trial judges reasons are insufficient for this reason.

[58]

A functional approach governs appellate review
    of the sufficiency of reasons. The relevant inquiry is whether the reasons
    respond to the case's live issues, having regard to the evidence as a whole and
    the submissions of counsel:
R. v. Dinardo
, 2008 SCC 24, [2008]
    1 S.C.R. 788, at para. 25;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at para. 10.

A
n
    appeal based on insufficient reasons will only be allowed where the trial
    judge's reasons are so deficient that they foreclose meaningful appellate
    review:
Dinardo
, at para. 25.

[59]

Under this deferential approach, a trial judge
    need not
review and resolve every inconsistency in a witness' evidence,
    nor respond to every argument advanced by counsel:
R. v. A.M
.
,
    2014 ONCA 769,
123 O.R. (3d) 536,
at para.
    14. However, major inconsistencies in the evidence of material witnesses
    should be addressed and explained:
R. v. D.H
.
, 2016 ONCA 569,
    338 C.C.C. (3d) 251, at para. 35. Accordingly, failure
to sufficiently articulate how credibility and reliability concerns
    are resolved may constitute reversible error:
A.M
.
, at para. 18.

[60]

As this court has pointed out, credibility and reliability are not the
    same thing. "Credibility has to do with a witness's veracity, reliability
    with the accuracy of the witness's testimony. Accuracy engages consideration of
    the witness's ability to accurately i. observe; ii. recall; and iii. recount
    events in issue":
R. v. H.C
.
, 2009 ONCA 56, 241 C.C.C.
    (3d) 45, at para. 41. Thus [c]redibility  is not a proxy for reliability: a
    credible witness may give unreliable evidence:
H.C
.
, at para.
    41;
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 526.

[61]

Both credibility and reliability were live issues in this case. From the
    outset of the trial, J.M.s suggestibility  a factor related to her
    reliability  was an important plank in the defence position. The Crown led the
    evidence of Dr. Jones to prove elements of both offences. However, defence
    counsel thoroughly cross-examined Dr. Jones on J.M.s suggestibility.

[62]

In his closing submissions, defence counsel repeatedly stressed the
    importance of this aspect of Dr. Jones evidence. Based on Supreme Court of
    Canada authority (i.e.,
R. v. D.D
.
, 2000 SCC 43, [2000] 2
    S.C.R. 275), defence counsel acknowledged that incremental disclosure is
    common amongst children and alone not a reason to disbelieve. However, he
    emphasized that his position extended beyond incremental disclosure. As he
    argued:

Here it is incremental disclosure with unrecorded interviews
    with a vulnerable suggestive witness whose evidence can be changed by
    questioning.
So I suggest to you thats different that the girl who comes
    forward and says to the police one thing, says a bit more at the preliminary
    inquiry, says a little bit more at trial.
Its not what happens here. Its a
    developing story that gets wider as shes asked about it, but we dont have
    those interviews.

And even when we do have the interviews, there [are] leading
    questions in them. There [are] questions that change her answers, as the doctor
    pointed out about the first interview. [Emphasis added.]

[63]

Defence counsel combined the suggestibility theme with his submission
    that many aspects of J.M.s account were implausible. He highlighted numerous
    instances in which J.M.s evidence was contradicted by the defence evidence.

[64]

I agree with the appellant that the trial judge failed to directly
    address J.M.s reliability. The trial judges reasons focus almost exclusively on
    J.M.s credibility or sincerity as a witness. The trial judge isolated several
    aspects of her evidence that he found to have the ring of truth, leading him
    to find the allegations proved beyond a reasonable doubt.

[65]

The trial judge referred to the evidence of Dr. Jones in relation to
    J.M.s general intellectual abilities and how her testimony should be
    approached, as required by the Supreme Court in
R. v. W. (R.)
, [1992]
    2 S.C.R. 122. Almost immediately after quoting from this decision, the trial
    judge said:

I find and accept that any frailties in the evidence of the
    complainant, as to timing and frequency of events and any difficulties she had
    in describing and recollecting certain incidents, represent the kind of
    evidence I would expect from children or witnesses with intellectual
    disabilities.

[66]

Although the trial judge relied on Dr. Jones evidence in this context,
    he failed to mention her evidence concerning J.M.s suggestibility. The issue
    was clearly grounded in the evidentiary record. It was emphasized in defence
    counsels closing submissions. Yet, because there is no attempt to address or
    reconcile this evidence in the trial judges reasons, we are left to speculate
    whether the trial judge appreciated the significance of this evidence and the
    role (if any) that it played in his ultimate findings.

[67]

Crown counsel on appeal acknowledges that the trial judge did not
    expressly find J.M. to be a reliable witness, nor did he specifically address
    the issue of suggestibility. Nevertheless, the Crown observes that J.M.s
    reliability was discussed during closing submissions, and submits that the
    trial judges reasons, when considered as a whole, reveal that he was alive to
    the issue of reliability and that, in substance, he did in fact address the
    issue.

[68]

As the Crown points out, a trial judges reasons must be read in the
    context of the entire record and should not be dissected into small pieces:
Morrissey
,
    at pp. 524-25. However, [r]easons for judgment should offer assurance to the
    parties that their respective positions were understood and considered by the
    trial judge in arriving at his or her conclusion:
Morrissey
,
at p. 525. In this case, the trial judges reasons
    offer no such assurance.

[69]

The Crown further submits that J.M.s testimony does not reveal that she
    was a particularly suggestible witness. I agree that J.M. seemed to hold her
    own while being questioned by counsel and the trial judge. The Crown also
    submits that the level of detail in J.M.s evidence makes it unlikely that all
    of her allegations were suggested to her by others. Further, the Crown contends
    that the appellants argument is based on speculation about what may have been
    said to J.M. in the days following her disclosure to Ms. Callahan, and others.

[70]

These are plausible arguments. They were advanced by the Crown at trial.
    But they were not addressed by the trial judge. As the Crown correctly submits,
    a trial judges findings on the credibility and reliability are entitled to
    deference:
R. v. Gagnon
, 2006 SCC 17,
[2006] 1 S.C.R. 621,
at para. 23
. The problem
    in this case is that there is nothing upon which to defer on the issue of
    suggestibility. The trial judge made no finding. He may have found this
    evidence to be inconsequential. He may have inadvertently overlooked this aspect
    of Dr. Jones evidence. It is a matter of speculation. The Crown essentially
    asks this court to review the record and, even in light of Dr. Jones evidence,
    find that J.M.s reliability was not compromised by her suggestibility during
    the early stages of the investigation. This was a matter for the trial judge.
    It is beyond the scope of proper appellate review.

[71]

I acknowledge that there are parts of the trial judges reasons that
    seem to allude to reliability considerations. However, his treatment of reliability
    is minimal and clearly incidental to his focus on J.M.s credibility. In this
    case, it was critical that the trial judge at least consider the evidence
    concerning J.M.s heightened suggestibility. His reasons give no indication
    that he did.

[72]

I would allow the appeal on this ground.

(2)      Illogical Reasoning

[73]

The appellant points to a passage in the trial judges reasons as being
    illogical and improperly bolstering J.M.s evidence. The trial judge reviewed
    nine aspects of J.M.s evidence which he found to have the ring of truth.
    Arguably, this list contains one factor that relates to J.M.s reliability
    (relating to the
W. (R.)
point addressed in para. 65, above); however,
    the overwhelming focus is on credibility. After reviewing these points, the
    trial judge said:

Other aspects of her evidence refer in substantial detail to
    certain events and places. Those are the abandoned house, the BBQ at CFB
    Trenton, the trip to Belleville with the stop at the Dairy Queen on the way
    home and the Pooch Park.
Despite certain inconsistencies in her evidence, I
    find these varying particulars and details of places and events corroborate her
    evidence and add to her credibility
. I am satisfied beyond a reasonable
    doubt that sexual encounters between the accused and the complainant occurred
    over at least a two-year period from 2011 to 2013. I find that the sexual
    encounters included sexual touching and sexual intercourse. [Emphasis added.]

[74]

The appellant contends that the underscored passage signals that the
    trial judge found that J.M.s evidence was self-corroborating. The Crown submits
    that, although the trial judge could have been much clearer in his reasons, he
    was referring to parts of J.M.s evidence that were corroborated by other
    evidence.

[75]

I agree with the appellant that, taken at face value, the trial judge
    appeared to find that the various locations and contexts related to the
    allegations made J.M.s account more trustworthy. To the extent that the trial
    judge was identifying aspects of J.M.s evidence that were confirmed by other
    evidence, as the Crown suggests, the confirmation involved nothing more than
    neutral or background factors. There was nothing that confirmed the sexual
    assault allegations themselves. The trial judge provided no analysis for his
    conclusion that the aspects of the evidence that he identified confirmed J.M.s
    evidence and enhanced her trustworthiness.

[76]

Again, we are left to speculate  this time about what the trial judge
    meant in this passage. However, it is clear this was important to the trial
    judge because in the very next sentence of his reasons, he found that the
    allegations were proved beyond a reasonable doubt.

[77]

Standing alone, I would not allow the appeal based on this ambiguous
    passage in the trial judges reasons. However, in combination with the error
    identified above in relation to reliability and suggestibility, this aspect of
    the trial judges reasons impacts on the last ground of appeal dealing with the
    failure to explain the rejection of defence evidence.

(3)      Failure to Explain
    Rejection of Defence Evidence

[78]

The appellant submits that the trial judge erred in failing to explain
    why he rejected the defence evidence. He contends that this too undermines
    meaningful appellate review. The Crown argues that the trial judges rejection
    of the appellants evidence is explained by his considered and reasoned
    acceptance beyond a reasonable doubt of the truth of J.M.s evidence.

[79]

The trial judge referred to the evidence of the appellant and his wife
    in considerable detail. Turning to conflicts between the evidence of J.M. and
    the appellant, the trial judge said:

Based on the inconsistencies in the evidence of the complainant
    and the improbabilities of certain events she described, I am urged to find
    that the evidence of the complainant is not reliable.

There is no inconsistency in the evidence of the accused.
    His was an outright denial that any of this happened
.
Accordingly, I
    must carefully assess the evidence of the complainant. [Emphasis added.]

[80]

I disagree that the appellants consistency as a witness can be
    explained by his evidence being an outright denial. In sexual assault cases,
    especially when the complainant is a child or a person with an intellectual
    disability, the testimony of an accused will almost always include an outright
    denial.

[81]

There was more to the appellants evidence (and that of his wife). The
    appellant testified at length and was cross-examined extensively by the Crown
    on all aspects of J.M.s allegations. Many parts of his evidence were supported
    by his wifes testimony. The trial judge did not explicitly reject the appellants
    evidence. He failed to make any finding about the evidence of his wife. He gave
    no indication why their evidence did not raise a reasonable doubt.

[82]

Although a trial judge is not required to explain how he or she resolved
    all nuances or inconsistencies in the evidence, major inconsistencies must be
    resolved. Fundamentally, an accused is entitled to know why his or her evidence
    did not leave the trial judge with a reasonable doubt:
Gagnon
, at
    paras. 20-21;
Dinardo
, at para. 26; and
D.H
.
, at para.
    35.

[83]

The Crown argues that the trial judges reasons, when read as a whole,
    show that he rejected the defence evidence based on a considered and reasoned
    acceptance beyond a reasonable doubt of J.M.s evidence: see
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.

[84]

If this was the reason for rejecting the defence evidence, the trial
    judge did not say so in his reasons. It does not necessarily follow that,
    because a trial judge rejects an accused persons evidence without saying why,
    it must be because of a considered and reasoned acceptance of conflicting
    evidence. The qualifiers  considered and reasoned  are important and their
    application must be clear from the reasons for judgment: see e.g.,
R. v.
    A.N
.
, 2017 ONCA 647, at paras. 17-19;
D.H
.
Their
    application is not clear in this case.

[85]

The trial judges errors in dealing with J.M.s evidence identified
    above prevent a finding that his rejection of the defence evidence was based on
    an acceptance of J.M.s evidence that was authentically considered and
    reasoned. The trial judges reasons for accepting J.M.s evidence are tainted
    by error.

[86]

This point is illustrated by this courts decision in
D.H
.
,
    a sexual assault case, in which the trial judge acknowledged several
    inconsistencies between the complainants testimony and that of her mother,
    related to the circumstances surrounding disclosure of the assaults. The trial
    judge concluded the accounts of the complainant and her mother were roughly
    consistent and dismissed any inconsistencies as peripheral:
D.H
.
,
    at paras. 37, 47-49.

[87]

On appeal, Feldman J.A. held that the trial judge erred in failing to
    resolve important discrepancies between the evidence of the complainant and her
    mother, and by failing to address a possible motive to fabricate
: at para. 48. Feldman J.A. reviewed other errors by the
    trial judge: she failed to resolve inconsistencies among the complainants own
    accounts and
did not explain significant conclusions that did not
    accord with  logic: at paras. 32, 54-55. Given the totality of the errors,
    Feldman J.A. concluded that the decision did not amount to a considered and
    reasoned acceptance beyond a reasonable doubt of the truth of the conflicting
    credible evidence": at para. 71.

[88]

I reach the same conclusion in this case. Given the trial judges errors
    in dealing with J.M.s evidence, his acceptance of her evidence was not
    considered and reasoned, within the meaning of
J.J.R
.
D.
, and
    not a legitimate basis for rejecting the evidence of the appellant and his
    wife.

[89]

I would allow this ground of appeal.

F.

conclusion

[90]

I would allow the appeal and order a new trial on the count of sexual
    assault.

G.T. Trotter J.A.

I agree. Doherty J.A.

Pepall J.A. (Dissenting):

A.

INTRODUCTION

[91]

This is yet another case in which sufficiency of reasons is advanced as
    a ground of appeal. No reasons are required in a jury trial, but we do demand
    more of a trial judge. This case addresses the extent of that demand.

[92]

The
    appellant was convicted of the sexual assault of a complainant who has an
    intellectual and developmental disability. Although the appellant raises three
    grounds of appeal, this appeal primarily focuses on the need for the trial
    judge to expressly address in his reasons the defence submission that the
    complainant was suggestible. Does this alleged failure render the trial judges
    28-page reasons for decision insufficient, thus requiring a new trial? My
    colleagues respond affirmatively and would allow the appeal and order a new
    trial. I would not. These are my reasons.

B.

GROUND ONE: RELIABILITY

[93]

The
    appellant submits that the trial judge failed to grapple with the issue of the
    reliability of the complainants testimony, particularly her suggestibility.
    With respect, I disagree.

[94]

In
    my view, the trial judges reasons allow for meaningful appellate review and
    are adequate. In the context of the whole of the record, it is evident that the
    trial judge grasped the substance of the case and that the basis for his verdict
    is obvious. He considered the complainants evidence on the core issue of her
    repeated sexual assaults by the appellant to be reliable and credible, and
    based on the evidence before him, he was satisfied that the appellant was
    guilty beyond a reasonable doubt. There is no reason to interfere with the
    execution of his role as a trial judge.

[95]

First,
    I will briefly address the content of the trial judges reasons. Then, I will
    discuss the evolution of the law on sufficiency of reasons, followed by a
    discussion on the assessment of a witnesss reliability. I will close with an
    analysis of why the trial judges reasons allow for appellate review and are
    adequate.

(1)

Trial Judges Reasons

[96]

I
    do not propose to repeat the factual background provided by my colleague, but I
    will provide some additional facts and a brief overview of the trial judges
    reasons.

[97]

In
    describing the facts, the trial judge found that the complainant was a person
    with an intellectual and developmental disability, and that the manner in which
    she testified in court was similar to a young person in the range of 10 to 12
    years of age. He noted that the complainant was between the ages of 17 and 22
    when the sexual assaults were said to have occurred. She was unable to live
    independently due to her developmental disabilities, and therefore lived with
    her former foster parents, Mr. and Mrs. C., as she needed the support of foster
    parents and Pathways to Independence, an organization that supports adult
    persons with developmental disabilities, in the affairs of daily living. The
    appellant and his wife were neighbours of Mr. and Mrs. C.

[98]

The
    trial judge referenced some of Dr. Jessica Jones testimony and her opinion,
    reviewed the complainants evidence of the numerous incidents of sexual assault
    that had occurred over the course of many years and in many locations, and
    described the disclosure made by the complainant.

[99]

The
    trial judge summarized the appellants testimony, and that of his wife, Heather
    Slatter. The appellant acknowledged being in the various locations identified
    by the complainant. However, he denied that he ever touched the complainant
    sexually or had come into contact with her in a sexual manner. I will return to
    the appellants testimony below when discussing the outcome of the BBQ incident.

[100]

The trial judge
    reminded himself that he must and would be guided by the principles of
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742,
and proceeded to recite them. Relying on
R. v. Vuradin
, 2013 SCC 38,
    [2013] 2 S.C.R. 639, he noted that a verdict of guilty must not be based on a
    choice between the evidence of the accused and the evidence of the Crown.

[101]

The trial judge
    first addressed the components of count two, whether the accused was guilty of
    sexual exploitation of a person with a disability under s. 153.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. He reasoned that he was satisfied beyond a
    reasonable doubt that the accused was at all material times in a position of
    trust towards the complainant. He was also satisfied that the complainant was
    at all material times a person with a mental disability.

[102]

The trial judge
    considered whether the appellant counselled the complainant to touch his penis
    for a sexual purpose. He noted that the complainants evidence on this issue
    was sparse  it included the appellant having slapped the complainants behind
    and telling her that she had a nice butt; telling her after a sexual contact
    between the two that if she were to ever tell anyone, he would deny it; and,
    after a sexual encounter at the Slatter house, telling her that she had a nice
    body and a nice bum and if she lost weight she would be skinny with big
    breasts. The complainant stated that the appellant did not say anything either
    before, during, or after the various sexual encounters between the two.

[103]

The trial judge
    could find no evidence that would constitute counselling of the complainant by
    the accused, and therefore determined that the Crown had failed to prove beyond
    a reasonable doubt all of the elements of count two.

[104]

He then turned to count one, whether between January 1, 2009 and
    September 8, 2013, the accused had sexually assaulted the complainant, contrary
    to s. 271 of the
Criminal Code
. The trial judge noted that the
    appellant had testified and denied all sexual contact. The trial judge stated
    that there was no inconsistency in the evidence of the accused, his was an
    outright denial that any of this had happened. Accordingly, the trial judge
    instructed himself to carefully assess the evidence of the complainant. As I
    will subsequently discuss, he did just that.

[105]

The trial judge
    concluded that he was satisfied beyond a reasonable doubt that sexual
    encounters between the appellant and the complainant occurred over at least a
    two year period from 2011 to 2013, and that the encounters included sexual
    touching and sexual intercourse.

[106]

The question for
    this court to consider is whether the trial judges reasons for decision were
    sufficient? Did the trial judge fail to address the reliability of the evidence
    of the complainant and the defence submission relating to the complainants
    suggestibility?

(2)

Evolution of Law on Sufficiency of Reasons

[107]

To place this
    appeal in context, it is helpful to briefly review the Supreme Court of
    Canadas jurisprudence on sufficiency of reasons in a criminal case. The
    Supreme Court of Canada's decision in
R. v. Sheppard
, 2002 SCC 26,
[2002] 1 S.C.R. 869,
    marked a considerable evolution in the law on sufficiency of reasons. In that
    case, the trial judge's reasons consisted of one sentence.

[108]

Binnie J.,
    writing for the court, described the factors that animate the consideration of
    sufficiency of reasons. An appellant has to show not only a deficiency in the
    reasons, but that the deficiency caused prejudice to the exercise of his or her
    right to an appeal in a criminal case: at para. 33. The test is whether the
    reasons perform their function of allowing an appeal court to review the
    correctness of the trial decision: at para. 25. The purport of the ten
    principles Binnie J. identified, at para. 55, bear repetition.

i.

The delivery of reasons is part of accountability for the discharge of
    the responsibilities of the office of a judge.

ii.

An accused should not be left in doubt about why a conviction has been
    entered. Reasons for decision may be important to clarify the basis for
    conviction, but on the other hand, the basis may be clear from the record. The
    question is whether, in all the circumstances, the functional need to know has
    been met.

iii.

Lawyers may require reasons to assist in advising on a potential appeal,
    but, on the other hand, they may know all that is required to be known for that
    purpose on the basis of the rest of the record.

iv.

Not every failure or deficiency in the reasons provides a ground of
    appeal.

v.

Reasons perform an important function in the appellate process. Where
    the functional needs of reasons are not satisfied, the appellate court may
    order appropriate remedial action.

vi.

Reasons acquire particular importance when a trial judge is called upon
    to address troublesome principles of unsettled law, or to resolve confused and
    contradictory evidence on a key issue, unless the basis of the trial judge's
    conclusion is apparent from the record, even without being articulated.

vii.

Regard
    will be had to the time constraints and general press of business in the
    criminal courts. The trial judge is not held to some abstract standard of
    perfection. It is neither expected nor required that the trial judge's reasons
    provide the equivalent of a jury instruction.

viii.

The trial
    judge's duty is satisfied by reasons which are sufficient to serve the purpose
    for which the duty is imposed,
i.e.
, a decision which, having regard
    to the particular circumstances of the case, is reasonably intelligible to the
    parties and provides the basis for meaningful appellate review of the
    correctness of the trial judge's decision.

ix.

While it is presumed that judges know the law with which they work day
    in and day out, and deal competently with the issues of fact, the presumption
    is of limited relevance. Even learned judges can err in particular cases, and
    it is the correctness of the decision in a particular case that the parties are
    entitled to have reviewed by the appellate court.

x.

Where the trial decision is deficient in explaining the result to the
    parties, but the appeal court considers itself able to do so, the appeal
    court's explanation in its own reasons is sufficient. There is no need in such
    a case for a new trial.

[109]

In
R. v.
    Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, Bastarache and Abella JJ. noted
    that 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?: at para. 13. In other words, the court 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:
    para. 13.

[110]

In
R. v.
    R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada
    elaborated on the general principles to be applied when considering the
    sufficiency of reasons:

i.

Reasons in Context
 Sufficiency of reasons should be judged in
    their entire context by what the trial judge has stated in the context of the
    record, the issues, and the submissions of counsel at trial: at para. 37.

ii.

The Degree of Detail Required
 The degree of detail required in
    the reasons varies with the circumstances: at para. 44. At a minimum, it is
    required that the reasons, read in the context of the record and the
    submissions on the live issues in the case, show that the [trial] judge has
    seized the substance of the matter.: at para. 43. The object of the exercise
    is not to show how the judge arrived at his or her conclusion in a watch me
    think fashion: at para. 17. It is rather to show why the judge made that
    decision: at para. 17.

iii.

Findings on Credibility

In a case that turns on
    credibility, the trial judge must direct his or her mind to the decisive
    question of whether the accuseds evidence, considered in the context of the
    evidence as a whole, raises a reasonable doubt as to his guilt: at para. 50.
    However, this does not mean that the trial judge is required to enter into a
    detailed account of the conflicting evidence: at para. 50.

iv.

Role of Appellate Courts in Assessing Sufficiency of Reasons

    An appellate court reviewing reasons for sufficiency should start from a stance
    of deference toward the trial judge's perceptions of the facts: at para. 54.
    The trial judge is in the best position to determine matters of fact, and in
    the absence of a palpable and overriding error by the trial judge, his or her
    perceptions should be respected: at para. 54. Thus, the appellate court,
    proceeding with deference, must ask itself whether the reasons, in their entire
    context, considered with the evidentiary record, the submissions of counsel and
    the live issues at the trial, reveals the basis for the verdict reached: at
    para. 55. If the answer to this question is affirmative,
the reasons are not deficient, notwithstanding
    lack of detail and notwithstanding the fact that they are less than ideal: at
    para. 56
. The trial judge should not be found to have erred in
    law for failing to describe every consideration leading to a finding of
    credibility, or to the conclusion of guilt or innocence: at para. 56. Nor
    should error of law be found because the trial judge has failed to reconcile
    every frailty in the evidence or allude to every relevant principle of law: at
    para. 56. Appellate courts must guard against sifting through the record and
    substituting their own analysis of the evidence for that of the trial judge
    because the reasons do not comply with their idea of ideal reasons: at para.
    56. This is neither the duty nor the right of the appellate courts: at para.
    56.

[111]

In that case,
    McLachlin C.J., writing for the court, noted that the trial judge had given
    reasons for accepting the complainant's evidence. It followed of necessity that
    he rejected the accuseds evidence where it conflicted with the complainants.
    No further explanation for rejecting the accuseds evidence was required. In
    such a context, the convictions themselves raised a reasonable inference that
    the accuseds denial of the charges failed to raise a reasonable doubt: at
    para. 66.

[112]

In
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, Charron J., writing for the court, noted that
    where credibility is a determinative issue, deference is in order, and
    intervention will be rare: at para. 26. She added:

[T]here is no general requirement that reasons be so detailed
    that they allow an appeal court to retry the entire case on appeal. There is no
    need to prove that the trial judge was alive to and considered all of the
    evidence, or answer each and every argument of counsel: para. 30.

[113]

In that case,
    the court was also dealing with a complainant who was mentally challenged. She
    had a history of making up stories to get attention, but more significantly,
    her testimony had wavered on the
central issue
of
    whether the accused had committed the assault in question: at para. 29. The
    court found that the trial judge's failure to avert to these matters left the
    court in doubt whether he had directed his mind to the central issue of
    credibility. I will return to this issue to explain, why in my view, this case
    is very different from the case under appeal.

[114]

The most recent decision from the Supreme Court on sufficiency of
    reasons is
Vuradin
. Before the court, counsel for the appellant
    submitted that the reasons of the trial judge did not explain why the trial
    judge accepted the evidence of the complainant, despite live credibility
    issues: at para. 9. The trial judge also did not address the appellant's evidence
    or explain why it was rejected: at para. 9.

[115]

Karakatsanis J.,
    writing for the court, stated that the core question in determining whether the
    trial judge's reasons are sufficient is: Do the reasons, read in context, show
    why the [trial] judge decided as he did on the counts relating to the
    complainant?: at para. 15. In
Vuradin
, the trial judges reasons did
    satisfy this threshold. The trial judge had found the evidence of the
    complainant compelling and while the trial judge was not obliged to discuss all
    of the evidence on any given point or answer each and every argument of
    counsel, he had recognized the live issues relating to the complainant's
    credibility: at paras. 16-17. Read in context, the trial judges reasons
    revealed that he rejected the appellant's denial: at para. 18.

[116]

Lastly, in
    considering sufficiency of reasons, one should be reminded of Doherty J.A.s
    observations on complexity:

Nor should appellate courts overestimate the complexity of most
    criminal litigation or underestimate the ability of those involved in the trial
    process to understand the reasons for the outcome. Most criminal trials, even
    the difficult ones, are not particularly complicated. Most accused, even those
    who vehemently disagree with the result, understand only too well why they were
    convicted. Once again, I return to the words of Binnie J. in
Sheppard
,
supra
, at para 60:

[I]n the vast majority of criminal cases both the issues and
    the pathway taken by the trial judge to the result will likely be clear to all
    concerned. Accountability seeks basic fairness, not perfection, and does not
    justify an undue shift in focus from the correctness of the result to an
    esoteric dissection of the words used to express the reasoning process behind
    it.

R. v. J.J.R.D.
(2006)
, 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 33.

(3)

Reliability

[117]

Although
    they share certain attributes, credibility and reliability are different
    concepts. Credibility deals with a witnesss veracity or truthfulness, while
    reliability addresses the accuracy of a witnesss testimony. Accuracy engages
    consideration of a witnesss ability to accurately observe, recall, and
    recount:
R. v. H.C.
, 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.

[118]

Like
    credibility, reliability is a factual determination. It is within the province
    of the trial judge. It is the trial judge who has the opportunity to hear and
    observe all of the witnesses. This reality anchors the principle that when
    reviewing reasons for sufficiency, an appellate court should start from a
    stance of deference towards a trial judge's perception of the facts:

The trial judge should not be found to have erred in law for
    failing to describe every consideration leading to a finding of credibility, or
    to the conclusion of guilt or innocence. Nor should error of law be found
    because the trial judge has failed to reconcile every frailty in the evidence
    or allude to every relevant principle of law.:
R.E.M.
at para. 56.

[119]

In assessing the
    reliability of a witness testimony, each case must be considered on its own
    facts:
R. v. A.(S.)
(1992), 11 O.R. (3d) 16 (C.A.), at p. 23. In that
    case, without requiring that each factor be addressed, this court listed a
    number of non-exhaustive factors that may be considered in appraising the
    reliability of a child complainants statement in a sexual assault case. This
    included medical evidence, the age and immaturity of the child, the language
    used in the statement, the relative spontaneity of the statement, the passage
    of time between the statement and the alleged assaults, and the absence of any
    details in the statement referable to the time, place, or circumstances in
    which the assault occurred: at pp. 22-23. Passage of time is another factor
    that may be relevant to the assessment of reliability:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.) at p. 526.

(4)

Dr. Jones Evidence

[120]

Before this
    court, the appellant argued in his factum that the trial judge had failed to
    grapple with the central issue of the reliability of the complainant's
    testimony. In oral argument, counsel for the appellant accepted that the trial
    judge considered reliability, but failed to address the complainants
    suggestibility. In particular, the appellant relied on the testimony of Dr.
    Jones that people with intellectual disabilities are more likely to be
    suggestible, especially when the questioner is in a position of authority or
    trust.

[121]

Dr. Jones
    evidence was that the complainant was suggestible to biased questions as
    compared to the normative population at the 75
th
percentile. An
    average normal person is at the 50
th
percentile; the complainant
    was at the 75
th
percentile. Dr. Jones also testified that if the
    information is personal, significant, and emotive, a person with an
    intellectual disability is less suggestible. A sexual assault would decrease
    suggestibility because it is not only personal and significant, but it is also
    highly emotive.

[122]

As the Crown and
    defence consented to the admission of this expert evidence and no argument was
    advanced on whether it was properly admitted, I make no comment or conclusion
    on its admissibility or the weight to be given all of Dr. Jones evidence.

(5)

Analysis

[123]

As McLachlin
    C.J. stated in
R.E.M.
, appellate courts considering the sufficiency of
    reasons should read them in their entire context, with the evidentiary record,
    the issues, and the submissions of counsel at trial.

[124]

In my view, the
    trial judge was unquestionably alive to the issue of reliability, and its
    subset of suggestibility, and his reasons meet the principles articulated in
    the Supreme Courts jurisprudence. The complainant never wavered on the core
    issue of whether the appellant had committed sexual assault. The trial judge
    seized the substance of the matter, was satisfied of her reliability, and the
    basis for his verdict was obvious. I will explain why this is so.

(a)

Reliability and Defence Closing Argument

[125]

In closing
    argument, defence counsel stated that his submissions were with respect to the
    reliability of the witnesses, and that this was a case not as much about
    credibility as it was about reliability. The trial judge was engaged in many
    exchanges with defence counsel during his closing submissions with respect to
    the reliability of the witnesses.

[126]

In one such
    exchange, the trial judge acknowledged that there were reliability issues and
    that this was obvious from the complainants evidence. The trial judge began to
    observe that the complainant spoke of a number of disparate events that had
    occurred. He was then interrupted by defence counsel who stated that the
    complainant was 75 percent more likely to have things suggested to her and
    change her answers than the average population. The trial judge acknowledged
    this comment.

[127]

In particular,
    counsel argued that the court should have great concern about the reliability
    of the complainants evidence because things were said to her that she then
    appeared to adopt. The trial judge responded, at p. 713:

Trial Judge: [L]et me tell you what Im struggling with and
    that is that yes, there are reliability issues. Thats obvious from her
    evidence. Yet, nevertheless, she speaks of a number of rather disparate events
    that happened

Counsel: Yes.

Trial Judge:  and in different locations, and over a period of
    time.

Counsel: Yes.

Trial Judge: A girl who is operating under some mental
    restraints. If it were one incident, if it were two incidents, I can
    understand, but here we have a girl, rather of somewhat limited mental ability,
    who tells us about a whole series of events over a number of years. Did she
    make it all up?

[128]

And then later
    at pp. 721-722:

Trial Judge: [B]ut Im still struggling with this, and I think
    I raised it before, and that is that  and assist me with that  and that is
    that because she gives evidence or gave statements by way of disclosures and
    then testified about a whole series, over a number of years incidents, as to
    one in the truck, one in [Mr. and Mrs. C.s] residence, at least it happened in
    [Mr. and Mrs. C.s] residence under different circumstances, it happened in the
    Slatter house, it happened in Larry and Sherries place  well, we can all
    recall  it happened all over the place, according to her. What I am struggling
    with is because her disclosure takes in a large period of time and different
    circumstances and different locations, you still say that at the end of the day
    I should say, because of her difficulties that she has in understanding, in
    speech, in recollection, that it should raise a reasonable doubt. I mean,
    thats obviously, I think, what youre likely going to say at the conclusion.

Counsel: No question.

[129]

When defence
    counsel returned to the 75 percent figure stating that people with intellectual
    disabilities are more likely to be suggestible, and that this was more likely
    to occur when the questioner was a person in authority, the trial judge
    responded, at p. 728: Right. But there is no evidence that Darlene Brennan had
    suggested anything to her about the abandoned house. The complainant had
    described in considerable detail the sexual assaults that had taken place at an
    abandoned house. The person in authority, whom the defence speculated had
    induced the suggestibility, was social worker, Darlene Brennan. There was
    nothing in the record that served to anchor any allegation of suggestibility with
    respect to any sexual assault at the abandoned house. In the appellants
    testimony, following that of the complainant and Darlene Brennan, the appellant
    confirmed that he and the complainant went to an abandoned house.

(b)

Reliability and the Trial Judges Reasons

[130]

In addition to
    his observations made during closing arguments, the trial judges reasons also
    reveal that he was alive to the issue of the complainants reliability. At
    para. 43, he stated:

Counsel for the accused summarized the evidence of the complainant
    and advanced the position that her evidence is full of inconsistencies to the
    extent that I should conclude that her evidence is unreliable. I will now
    review that part of the complainants evidence, which is said to be
    inconsistent.

[131]

Then, at para.
    44, he stated:

Based on inconsistencies in the evidence of the complainant and
    the improbabilities of certain events she described, I am urged to find that
    the evidence of the complainant is not reliable.

[132]

He also made the
    following findings of fact that reflect a consideration of whether he could
    rely on the complainants evidence in spite of the shortcomings identified by
    defence counsel, at para. 48:

The accused stated to her that if she ever told about their
    sexual encounters that he would deny it. If he did not make this statement, I
    must ask myself if she made it up and if so, whether she had the mental acuity
    to do so.

I find and accept that any frailties in the evidence of the
    complainant, as to the timing and frequency of events and any difficulties she
    had in describing and recollecting certain incidents, represent the kind of
    evidence I would expect from children or witnesses with intellectual
    disabilities.

[133]

The trial judge
    also addressed the argument relating to the improbable sequence of events relating
    to the complainants sexual encounter with the appellant at the abandoned
    building, and explained the improbability argument advanced by the defence on
    the subject of the brief encounters on the evenings of the card games at Mr.
    and Mrs. C.s house, at para. 48.

Her vivid description of her sexual encounter with the accused
    at the abandoned building was in short order followed by a return to the
    Slatter house. There she was given a diet pop and had small talk with Heather
    Slatter.
On the one hand, it might appear as an
    improbable sequence of events. On the other hand, it might speak to the
    complainant having become accustomed to sexual contact with the accused
.

Regarding her attendance with the accused at the home of Larry
    and Sherrie, the question arises as to how she knew that they were away in
    Myrtle Beach? The information likely came from either the accused or from
    Heather Slatter. However, Heather Slatter did not state that her dog walks with
    the complainant ever included a visit to this home.
Accordingly,
    I find that it likely came from the accused who attended at this home with the
    complainant on their dog walks
. I find this to be an example of the
    accused and the complainant being alone together. Other such examples are the [Mr.
    and Mrs. C.] and Slatter homes, the abandoned house and the Pooch Park. They
    were, if nothing else, places of opportunity. [Emphasis added.]

[134]

The trial judge
    found that the Friday evening card games at Mr. and Mrs. C.s house became an
    opportunity for the appellant on his way to the bathroom to briefly look in on
    the complainant and fondle her: at para. 48. These were likely but brief
    encounters: at para. 48. His absence from the card game would be explained by
    his bathroom visit: at para. 48.

[135]

Although defence
    counsel had discussed suggestibility in his closing submissions, when he listed
    issues that called into question the complainants reliability, the list did
    not include suggestibility. The trial judge proceeded to review each of these
    inconsistencies and improbabilities as described by the defence. This was the
    characterization adopted by the defence. It is noteworthy that the trial judge
    adhered to the defence argument in this regard. I accept that many of these
    issues went to credibility, but it was defence counsel who organized his
    submissions in this manner and the trial judge merely responded to them. Moreover,
    some of them did encompass reliability. It is evident from a review of the
    trial judges reasons that the trial judge was clearly seized of the substance
    of the issue of the complainants reliability.

(c)

Transcript Reveals No Air of Reality of Suggestibility Submission

[136]

A review of the
    transcript of the evidence at trial reveals that the complainant was not unduly
    suggestible to persons of authority, and was unwilling to agree with anything
    put to her. This would have been abundantly clear to the trial judge who
    listened to and observed the complainant testify.

[137]

Her exchanges
    with the trial judge, most certainly a person of authority, provide such an
    example. For instance at p. 241, the complainant was describing the dog walks
    and who attended with her. The trial judge asked: Oh sometimes it might be
    just you and Heather?, to which the complainant responded: She [Heather
    Slatter] wasnt always there. The trial judge repeated: She was always
    there, and then again: What do you mean she was always there?. The
    complainant proceeded to correct the judge, She wasnt always, she wasnt
    always there.

[138]

Her exchanges
    with defence counsel, arguably another person of authority, provide further
    such examples. When the complainant was cross-examined by defence counsel, at
    p. 292, the defence counsel said: But you didn't tell her [Mrs. C.] THE whole
    story. You didnt tell her about the sexual intercourse.  Because you didnt
    remember it when you talked to her. The complainant responded: I did remember
    it, its just I didnt know how to say it.

[139]

There are many
    examples like these in the transcript that reveal that the complainant was not
    unduly suggestible, and was unwilling to agree with anything put to her.

[140]

I also note the
    trial judges comments made during closing submissions that the complainant
    knows how to draw the line and she knows how to push back and follow through
    on what she wants to do, and [w]hen something is important to her, she knows
    how to push back. This undercuts the appellants suggestibility argument.

(d)

Absence of Factual Foundation

[141]

The argument of
    suggestibility lacked a factual foundation to anchor the experts generalized
    opinion. It was so lacking in merit that while the trial judge was alive to the
    issue, there was no need to directly advert to it. There was a paucity of
    evidence that linked any suggestions of sexual assault to the numerous and
    detailed descriptions of sexual assaults described by the complainant. The
    complainants statement to the police was not placed in evidence, nor was her
    interview with Dr. Jones, and there was no written record of conversations
    between the complainant and social workers. As the Crown at trial noted, there
    was no suggestion of any words such as rape, doggy style, or the events
    surrounding the bathing in the shower, going to the Dairy Queen, kissing at the
    BBQ, or sex at the abandoned house having been suggested to the complainant. Indeed,
    Darlene Brennan testified that the complainant used the term rape first, not
    she. The complainants description of her encounters with the appellant were
    extremely detailed and inconsistent with the claim that the complainant was
    simply parroting what had been suggested to her. On the issue of susceptibility
    to suggestion, there is no evidence of any suggestion that the detail of the
    events was manufactured. It is one thing to say that a witness is susceptible
    to suggestion however, there has to be a suggestion to be suggestible to. Here
    there was none. It was mere speculation.

[142]

The trial judge
    stated that he need not respond to every argument. He had engaged with defence
    counsel on the issue of suggestibility. By any measure it had no air of
    reality. There was no need for him to address the matter in his reasons.

(e)

BBQ Evidence

[143]

Moreover, the
    evidence on the BBQ incident serves to lend support to both the accuracy and
    the veracity of the complainants testimony.

[144]

The complainant
    testified that her former foster parents, Mr. and Mrs. C., the appellant and
    his wife, Mrs. Slatter, and she regularly attended Friday night BBQs at the CFB
    Trenton airport base. Mr. and Mrs. C. and Mrs. Slatter would hang out inside
    the building; the appellant and the complainant would be outside.

[145]

The appellant
    testified that the complainant would be out at the BBQ with him. Someone
    complained about an interaction between him and the complainant saying that he
    was kissing her on the cheek or on the forehead or something. The appellant
    acknowledged that that was what had been said, but disagreed. He denied that it
    was a little affectionate kiss because she was a good friend. He also
    acknowledged that the complainant had to stay inside the building after that,
    and that was somebodys rule.

[146]

The complainant
    testified that the appellant did the barbequing and she was allowed outside the
    building  that was, until an incident happened. She testified that she was
    texting and the appellant leaned over and was being inappropriate; he was
    kissing her on the forehead and on the cheeks. Mrs. C. told the complainant
    that she could not go out to the BBQ anymore; she had to stay inside. The
    complainant stopped going to the BBQ after this.

[147]

Mrs. Slatter
    testified that she was aware of the complaint and that Mrs. C. was asked to
    bring the complainant inside.

[148]

The trial judge
    found as follows, at para. 48:

Regarding the BBQ incident, I note that the complainant did not
    say that the accused had asked her about her texting. She said that he kissed
    her on the forehead and cheek. In any event, this physical closeness of these
    two at the BBQ caused her to be told to go inside. After this incident, she
    stopped attending these Friday functions at the Air Base. I prefer and accept
    the evidence of the complainant regarding this incident.

[149]

The incident
    served to undermine the appellants testimony that he never touched the
    appellant sexually.

(6)

Conclusion on Ground One

[150]

In summary, it
    is clear from the reasons that the trial judge considered the complainants
    reliability and credibility concerns, commented where necessary, and was
    satisfied beyond a reasonable doubt of the appellants guilt. Unlike in
Dinardo
,
    there really was no question of the accuracy of her testimony that she had been
    sexually assaulted by the appellant. The trial judge appreciated the difference
    between credibility and reliability, and adequately addressed reliability in
    his reasons. His reasons were not perfect. However, in my view, he was
    unquestionably alive to the real material issues before him, dealt with them in
    substance, and there can be no doubt that he was satisfied beyond a reasonable
    doubt of the appellants guilt. He had the advantage of seeing and hearing the
    various witnesses testimony. The reasons allow for meaningful appellate
    review. Reading the proceedings as a whole, I conclude that this ground of
    appeal should not succeed.

[151]

This is for five
    reasons: (1) a review of defence counsels closing submissions reveals that the
    trial judge was alive to the issue of the complainants reliability, and its
    subset of suggestibility; (2) a review of the trial judges reasons also
    reveals that the trial judge was alive to the issue of the complainants
    reliability, of which suggestibility is a subset; (3) a review of the transcript
    of evidence at trial undermines the allegation of suggestibility; (4) there was
    a paucity of evidence to form the foundation for suggestibility; and (5) the
    evidence of the BBQ incident lends support to both the accuracy and veracity of
    the complainants testimony.

[152]

To rule as my
    colleagues do demands a standard of perfection and is, with respect,
    inconsistent with the principles articulated by the Supreme Court of Canada.
    This ground of appeal should be dismissed.

C.

GROUND TWO: CONFIRMATION OF DETAILS

[153]

The appellant
    also submits that the trial judge improperly relied on the complainants
    evidence as being self-corroborating. I agree with my colleagues that standing
    alone, the appeal should not be allowed based on the impugned passage in the
    trial judges reasons.

[154]

It is entirely
    proper to rely on the fact that many details in the complainant's account were
    confirmed by other people, thus restoring faith in the reliability of the
    complainants testimony. The trial judge could have been clearer and more
    precise with his language. Given the context, it is reasonable to treat his
    comment as referring to confirmation of details by other witnesses. The
    appellant, his wife, and Mr. C. confirmed elements of the complainants
    evidence on the abandoned house, the BBQ incident, the Dairy Queen outing, and
    the Pooch Park. This went to the reliability of the complainants evidence.
    Moreover, the trial judges comment was directly responsive to the Crowns
    closing submissions to that effect, and should be considered in that context. I
    would not give effect to this ground of appeal.

D.

GROUND THREE: APPELLANTS EVIDENCE

[155]

The appellant
    submits that the trial judge erred in failing to explain his rejection of the
    defence evidence. I disagree.

[156]

The trial judge
    instructed himself on
W.(D.)
and cautioned himself that this case was
    not a credibility contest: at paras. 30-31 and 45-46. He knew that he had to
    look at the whole of the evidence to determine whether he was left with a
    reasonable doubt: at para. 31. He recognized that he would be assessing the
    complainants evidence in the same manner as [he] would the evidence of a
    child in the range of 10-12 years, and that her evidence was to be approached
    from a common sense perspective: at para. 47.

[157]

Implicit in his
    reasoned acceptance of the complainants evidence was his rejection of the
    appellants evidence. As stated in
R.E.M.
,
at para. 66, where a complainant's evidence conflicts
    with that of an accused and the trial judge gives reasons for accepting a
    complainants evidence, it follows:

of necessity that [the trial judge] rejected the accuseds
    evidence where it conflicted with evidence of the complainant that he accepted.
    No further explanation for rejecting the accuseds evidence was required. In
    this context, the convictions themselves raise a reasonable inference that the
    accuseds denial of the charges failed to raise a reasonable doubt.

[158]

Not
    surprisingly, given that the appellant's evidence was an outright denial, the
    trial judge focused his analysis on the complainants evidence. When read as a
    whole, it is clear why the trial judge reasoned that he was compelled to accept
    the complainants evidence and reject that of the defence. The trial judge was
    alive to the frailties in the complainants evidence, and looked for and found
    confirmatory evidence to restore his faith in the accuracy and reliability of
    her version. He expressly addressed potential improbabilities in her evidence
    but did not find her version of events to be improbable. The details
    surrounding the incident at the BBQ were confirmed by other witnesses, as well
    as the fact that after this incident, the complainant stopped attending the
    Friday BBQs. He attributed frailties in her evidence on timing and frequency of
    events to her intellectual and developmental disabilities and this did not
    cause him to doubt the veracity and accuracy of her version of events. He noted
    specific details such as her description of the shower incident where she
    cleaned up the water on the floor in the bathroom, her evidence that the
    appellant told her if she lost weight, she could be skinny with big breasts,
    and her description of her sexual encounters with a middle-aged neighbour
    when she made her first disclosure to a young cabin mate at camp. No further
    explanation was required.

[159]

In his analysis,
    my colleague relies on
R. v. D.H.
, 2016 ONCA 569, 338 C.C.C. (3d) 251,
    and
R. v. A.N.
, 2017 ONCA 647, however, those were both very different
    cases.

[160]

In
D.H.
,
a decision not relied upon by the
    appellant, there were a myriad of errors by the trial judge, a failure to
    address a possible motive to fabricate the allegations, and other complexities,
    including conclusions that did not accord with logic. The appeal was allowed
    given the totality of the errors: at para. 71. This is not the case here.

[161]

In
A.N.
,
    in very brief reasons, this court allowed an appeal involving convictions for
    sexual offences. The sexual offences were two in number and historical in
    nature, having occurred more than 30 years earlier. There was no confirmatory
    evidence supporting the testimony of the complainant. Again, this is not the
    case here.

[162]

Instead, this courts decision in
R.
    v. R.A.
, 2017 ONCA 714, 355 C.C.C. (3d) 400, leave to appeal refused, 2018
    SCC 13, [2018] 1 S.C.R. 307, bears more similarity to this appeal than those
    cases. In
R.A.
, this court had occasion to consider the appellants
    argument that the trial judge failed to resolve a critical inconsistency in the
    complainants evidence, and failed to explain why he accepted the complainants
    evidence and rejected the appellants evidence. Similar to the case under
    appeal, in
R.A.
, the trial judge neither explicitly accepted nor
    rejected the appellants testimony. He found that the appellant had testified
    in a straightforward manner, was not evasive, and withstood cross-examination:
    at para. 35. The trial judge also acknowledged that the complainant gave some
    contradictory evidence: at para. 36. However, the majority found that a reading
    of the record as a whole demonstrated that the trial judge responded to the live
    issues in the case: at para. 48. The trial judge was entitled to reject the
    appellants evidence based on his considered and reasoned acceptance beyond a
    reasonable doubt of the truth of the conflicting credible evidence: at para.
    56. The majority thus dismissed the appeal.

[163]

The reasons of
    the trial judge in this case did not set out every detail in the case. However,
    based on the Supreme Courts jurisprudence, the reasons did not have to.
    Implicit in the trial judges reasoned acceptance of the complainants evidence
    was his rejection of the appellants evidence. I would dismiss this ground of
    appeal.

E.

Conclusion

[164]

In conclusion,
    in my view, the trial judges reasons readily permit meaningful appellate
    review and leave no doubt as to why the trial judge decided as he did. This was
    not a complex case and the appellant would understand why he was convicted.
    Unlike in
Dinardo
, the complainant, in spite of her extensive
    cross-examination, never resiled from her core allegations of numerous sexual
    assaults by the appellant. Sexual assault, the central issue in this case, was
    not suggested to the complainant. That was her independent evidence. She never
    told different things to different people on this fundamental point.

[165]

R. v. D.A.I.
,
    2012 SCC 5, [2012] 1 S.C.R. 149, was a sexual assault case involving a child
    who was mentally disabled and the issue of testimonial competence. McLachlin
    C.J. wrote, at para. 1: The challenge for the law is to permit the truth to be
    told, while protecting the right of the accused to a fair trial and guarding
    against wrongful conviction.

[166]

Here, the
    appellant had a fair trial. I see no basis to order another one. For these
    reasons, I would dismiss the appeal.

Released: October 8, 2019 DD

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Usifoh, 2019 ONCA 814

DATE: 20191009

DOCKET: C64412

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Davidson Usifoh

Appellant

Davidson Usifoh, acting in person

Michael Fawcett, for the respondent

Heard: October 1, 2019

On appeal from the conviction entered and
    the sentence imposed by Justice Howard Borenstein of the Ontario Court of
    Justice on August 28, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of multiple counts
    of fraud. He appeals his conviction alleging ineffective assistance of his
    trial counsel.

[2]

Essentially, the appellant alleges that his
    lawyer failed in his duty by:

i.

admitting to facts that he should not have (
i.e
.,
    that the victims had been defrauded);

ii.

by failing to bring relevant evidence to the
    trial judges attention;

iii.

by failing to prepare the appellant to testify
    at trial; and

iv.

by colluding with the Crown to use the appellant
    as a witness to prove its case.

[3]

We disagree with each of these allegations, as
    follows:

i.

Defence counsel made reasonable concessions, for
    which he received proper instructions. The appellant signed off on the agreed
    statement of facts;

ii.

The evidence that the appellant says was not
    brought to the attention of the trial judge was contained in the books of
    exhibits filed at trial. As defence counsel said in this cross-examination, he
    could not guarantee that the trial judge actually read everything. However, we
    have no reason to believe that the trial judge was not diligent;

iii.

We accept defence counsels evidence that he
    spent sufficient time and effort in preparing the appellant to testify. This
    included conducting a mock cross-examination. It is true that the trial judge
    rejected the appellants evidence. We are not persuaded that this resulted from
    a lack of preparation; and

iv.

The allegation of collusion with the Crown is
    completely without merit.

[4]

In sum, we are unable to conclude that trial
    counsels performance fell below what is expected of reasonably competent
    counsel.

[5]

The conviction appeal is dismissed.

[6]

The appellant also seeks leave to appeal his
    fine and compensation orders based on his impecuniosity. All relevant facts
    were before the trial judge. We see no basis to interfere with the trial
    judges exercise of discretion in this regard. The application for leave to
    appeal is granted, but the appeal against sentence is dismissed.