COURT OF APPEAL FOR ONTARIO

CITATION: Ting (Re), 2021 ONCA 425

DATE: 20210616

DOCKET: M52338 (C68764)

Rouleau, Hoy and van Rensburg
    JJ.A.

In
    the Matter of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3,

as
    amended

And
    in the matter of a proceeding in the Hong Kong Special

Administrative
    Region Re: James Henry Ting (in bankruptcy)

Application
    of Cosimo Borrelli and Jacqueline Walsh of Borrelli

Walsh
    Limited under section 269 of the
Bankruptcy and

Insolvency
    Act
, R.S.C., 1985, c. B-3, as amended

Ilan Ishai, for the moving
    parties, Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited

Andrew Rogerson and Arash Jazayeri, for
    the responding party, Andrew Henry Ting

Heard: June 2, 2021 by video conference

REASONS FOR DECISION

[1]

This is a motion to quash an appeal.

[2]

The appellant, and responding party in this
    motion, Andrew Henry Ting, seeks to appeal two orders made against him in the
    context of bankruptcy proceedings in Ontario involving his father, James Henry
    Ting. Mr. Ting, Sr. was adjudged bankrupt by a Hong Kong court in 2016. The
    following year the bankruptcy order was recognized by the Superior Court under
    s. 270 of the
Bankruptcy and Insolvency Act
(the BIA), and the moving parties, who are the trustees in
    bankruptcy of the bankrupt, were appointed as foreign representatives of the
    bankrupt as defined in s. 268.

[3]

On January 15, 2019, Penny J. granted an order
    in the bankruptcy proceedings enforcing a letter of request from the Hong Kong
    court, requiring the appellant to make certain productions and to attend an
    examination. After an unsuccessful attempt to appeal that order (the appeal was
    quashed and the appellant was denied leave to appeal by the Supreme Court of
    Canada), the appellant failed to attend for examination. The trustees brought a
    motion for contempt. By order dated October 5, 2020, Dietrich J. found the
    appellant in contempt and allowed him to purge his contempt within ten days.
    The appellant delivered a notice of appeal of that order. On February 8, 2021,
    the appellant was sentenced to seven days incarceration for contempt, to come
    into effect seven days after the final adjudication of the appellants appeal.
    The appellant served an additional notice of appeal in respect of the penalty
    order.

[4]

The appellants notices of appeal assert that he
    has a right of appeal under s. 193(a) of the BIA. He has also served the
    trustees with a motion for leave to appeal both orders under s. 193(e). That
    motion, which is to be heard by a single judge of this court, is scheduled for
    September.

[5]

This court has repeatedly held that an appeal
    from an order made in bankruptcy proceedings is governed by s. 193 of the BIA:
Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company
    Limited
, 2012 ONCA 569, 95 C.B.R. (5th) 157, at
    para. 19;
Wallace (Re)
,
    2016 ONCA 958, 43 (C.B.R.) (6th) 2010, at para. 7;
Business
    Development Bank of Canada v. Astoria Organic Matters Ltd. and Astoria Organic
    Matters Canada LP
(7 January 2019), Ontario, M49872 (C65512) (C.A.)
    (In Chambers), at para. 20;
Shaver-Kudell Manufacturing
    Inc. v. Knight Manufacturing Inc.
, 2021 ONCA 202 (In Chambers), at
    para. 18
.
See also
2003945
    Alberta Ltd. v. 1951484 Ontario Inc.
, 2018 ABCA 48, 57 C.B.R. (6th)
    272, at para. 11. An order will also be subject to the appeal routes under s.
    193 (rather than under s. 6 of the
Courts of Justice Act
(the
    CJA))

where the order is made by a judge exercising powers conferred
    by the BIA:
Business Development Bank of Canada v. Astoria
    Organic Matters Ltd.
, 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras.
    29-31.

[6]

While an order may involve a bankrupt, or be made during the
    currency of bankruptcy proceedings, this is not determinative of whether an
    appeal from that order is governed by the BIA or CJA:
Rusinek
    & Associates Inc. v. Arachchilage
, 2021 ONCA 112, 87 C.B.R.
    (6th) 1;
RREF II BHB IV Portofino, LLC v. Portofino
    Corporation
, 2015 ONCA 906, 33 C.B.R. (6th) 9. For example, in
Rusinek
, an order made on an application pursuant to r.
    14.05(3)(d) of the
Rules of Civil Procedure
,

determining that a bankrupts trustee did not have the right to commence
    an equalization claim against the bankrupts former spouse, was appealable
    under s. 6(1) of the CJA. It was not an order made in bankruptcy
    proceedings, nor was the application judge exercising a power conferred on her
    by the BIA: at para. 15.

[7]

In our view, in the present case, the orders are
    subject to the appeal routes under s. 193 of the BIA. The appellant commenced
    his appeal relying on the provisions of the BIA. The orders under appeal were
    made in the bankruptcy proceedings of Mr. Ting, Sr. The appellant was brought
    into his fathers bankruptcy proceedings through the order of Penny J., with which
    he failed to comply, leading to the contempt order and penalty order. Penny J. expressly
    exercised a power under s. 272(1)(b) of the BIA, that provides, on application
    by a foreign representative, for an order respecting the examination of
    witnesses concerning the debtors property, affairs, debts, liabilities and
    obligations. Penny J. stated that he was satisfied that the orders enforcing
    the Hong Kong courts letter of request and requiring the appellants
    examination, fall squarely within s. 27[2](1)(b) of the BIA. The orders under
    appeal were made in the context of the enforcement of the Penny J. order.

[8]

The appellant contends that he has a right to
    appeal the motion judges contempt order and the penalty order under s. 193(a)
    of the BIA, which provides for an appeal to this court if the point at issue
    involves future rights.

[9]

The appellant asserts that the appeal involves
    future rights because his appeal raises matters of procedural fairness  as one
    of his grounds of appeal, the appellant contends that the motion judge
    improperly refused to recuse herself after the moving parties counsel made
    allegations of criminal misconduct against him that were not supported by the
    evidence.

[10]

Future rights have been described as rights
    which could not at the present time be asserted but which will come into
    existence at a future time:
Elias v. Hutchison
, 1981 ABCA 31, 37 C.B.R. (N.S.) 149, at para. 28, cited with
    approval in
Re Ravelston Corp.
(2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 19. The question
    is whether the rights engaged in an appeal are future rights or presently
    existing rights that are exercisable in the future:
Business Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115 O.R. (3d) 617 (In Chambers), at para. 16.

[11]

In support of the argument that
his appeal engages future rights, the appellant relies on
Canada
    Deposit Insurance Corp. v. Commonwealth Trust Co.
(1993)
, 35 C.B.R. (3d) 208 (B.C.C.A.) (In
    Chambers). In that case, the B.C. Court of Appeal held that the appeal of an
    order of a judge made under the
Winding-up Act
for refusing to recuse
    himself on the grounds of reasonable apprehension of bias, involved future
    rights. The statutory scheme however was different (s. 103 of the
Act
provided for appeal with leave from specific orders, including orders
    involving future rights), and the court did not analyze the issue, but
    accepted the concession of the respondent that the appeal as framed involved
    future rights, and that it was therefore open to the appellant to seek leave to
    appeal under the
Act
: at para. 3.

[12]

In
Re Ravelston,
Doherty J.A. noted
    that [e]arlier casesthat would give the phrase future rights a wide and
    liberal interpretation are inconsistent with the contemporary approach to
    statutory interpretation: at para. 17. Indeed, more recent case law applying
    s. 193 of the BIA confirms that issues of procedural fairness typically engage
    a partys present, and not future rights. In
2003945 Alberta Ltd.
,
    a case involving the appeal of an order in receivership proceedings, directing
    the summary trial of an issue, the court rejected the argument that future
    rights were engaged because the order restricted the appellants rights in a
    future trial to call necessary witnesses. The court concluded that an appeal of
    an order on the grounds of procedural fairness implicates a partys
present
,
    not future, rights: at para. 19.
See also
Simonelli v.
    Mackin
, 2003 ABCA 47, 39 C.B.R. (4th) 297 (In Chambers), at para. 11.

[13]

Similarly, in the present case, the appellants
    right to procedural fairness was a present right that existed at the time of
    the hearing before the motion judge. His appeal of the contempt order and the
    penalty order do not engage future rights within the scope of s. 193(a) of the
    BIA.

[14]

For these reasons the appeal is quashed. Costs to
    the moving parties in the agreed amount of $5,000, inclusive of HST and
    disbursements.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2021 ONCA 423

DATE: 20210615

DOCKET: M52452 (C66490)

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Campbell

Appellant

Stephen Campbell in person

Philippe Cowle, for the respondent

Heard: June 10, 2021 by videoconference

REASONS FOR DECISION

[1]

Mr. Campbell brings this motion for an order that a fresh psychiatric
    report be prepared. Mr. Campbell was convicted of attempted murder on August 3,
    2017. The defence of not criminally responsible (NCR) was rejected by the
    trial judge.

[2]

The appellant seeks a fresh psychiatric report on the basis that the original
    psychiatric report relied upon by the Crown at the trial was laced with
    errors, untruths and statements that I never made. The appellant contends that
    a new psychiatric report would support the NCR defence.

[3]

Nothing of substance has changed since the original psychiatric reports
    were prepared for trial. In that regard, we note that, in addition to the
    psychiatric report filed by the Crown, a separate psychiatric report was filed
    by the defence. Both of those reports were carefully reviewed by the trial
    judge. For the reasons that the trial judge gave at the time, she concluded
    that the NCR defence was not established.

[4]

The preparation of a post-conviction psychological assessment for the
    purposes of treatment recommendations does not change the situation. It remains
    the fact that there is no proper basis for ordering a fresh psychiatric report
    in these circumstances.

[5]

The motion is dismissed. If any problems develop with getting the appeal
    scheduled for hearing, the matter can be addressed before Trotter J.A.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2021 ONCA 422

DATE: 20210615

DOCKET: M52542 (C69153)

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Codina

Applicant (Appellant)

Angelina Codina, acting in person

Vanita Goela, for the respondent

Heard: in writing

REASONS
    FOR DECISION

[1]

The court recently dismissed the applicants appeal of the dismissal of
    her application for a writ of
habeas corpus
, alleging that she has
    been unlawfully detained and should be released.

[2]

In rejecting her argument that the application judges reasons were
    insufficient, the court commented that the applicant made a jurisdictional
    argument without reference to any authorities or supporting materials.

[3]

Seizing on that comment, the applicant seeks to file what she
    characterizes as fresh evidence and, based on it, asks the court to re-open her
    appeal.

[4]

Her application is without merit.

[5]

What the applicant characterizes as fresh evidence consists of further
    legal argument that the trial court did not have jurisdiction to try the
    offences of which she was convicted. The proposed fresh evidence does not
    satisfy the test for the admission of fresh evidence:
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775. Moreover, the further arguments she makes now
    are not relevant to the sufficiency of the application judges reasons.

[6]

The application is dismissed.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


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. R.C., 2021 ONCA 419

DATE: 20210615

DOCKET: C64312

Doherty, van Rensburg, and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.C.

Appellant

Mark C. Halfyard, for the appellant

Catherine Weiler, for the respondent

Heard: April 29, 2021 by videoconference

On appeal from the conviction entered by Justice Kofi N. Barnes
    of the Superior Court of Justice on January 30, 2017.

Thorburn J.A.:

OVERVIEW

[1]

On January 30, 2017, the appellant, R.C., was convicted of sexual
    assault, sexual interference, incest, and assault. The trial judge provided
    oral reasons for these convictions (the Oral Reasons). In his reasons, the
    trial judge stated:

I will at the end of my decision order a transcript of my
    decision, at which time, I will include excerpts of the questions and answers
    verbatim from the transcript to illustrate my areas of concern [with the
    appellants evidence].

[2]

On September 23, 2017, the appellant was sentenced to eight years in
    custody less 30 days pre-trial custody.

[3]

On January 9, 2019, nearly two years after the Oral Reasons were given,
    the trial judge released edited reasons for the convictions (the Edited Reasons).

[4]

The appellant now raises three grounds of appeal in relation to the
    convictions entered in January 2017:

a)

The trial judge failed to properly assess the material inconsistences in
    the complainants evidence and the reasons he gave for resolving those
    inconsistencies were illogical. As such, he failed to properly apply the principles
    set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742;

b)

The trial judge applied more scrutiny to the appellants evidence than
    he did to the complainants evidence; and,

c)

The trial judge provided insufficient reasons.

[5]

The appellant claims that in assessing his three grounds of appeal, this
    court should consider only the Oral Reasons rendered on January 30, 2017 not
    the Edited Reasons released on January 9, 2019. The appellant further asserts
    that the Oral Reasons are insufficient to support a conviction on any of the
    charges.

THE FIRST
    ISSUE: WHETHER THE ORAL OR EDITED REASONS SHOULD BE CONSIDERED ON THIS APPEAL

[6]

The appellant filed a motion to consider fresh evidence on the consent
    of both parties in support of his request that this court consider only the
    Oral Reasons. The fresh evidence includes both the Oral Reasons and the Edited Reasons,
    and a blackline comparison of the changes.

[7]

In the Edited Reasons the trial judge did not disavow his Oral Reasons.

[8]

The Edited Reasons (a) contain further explanations of the trial judges
    reasons for rejecting the appellants evidence; (b) omit two grounds for
    rejecting the appellants evidence (relating to income he reported to
    immigration authorities in support of his immigration application for his children,
    and how long he remained employed at his place of work); and (c) provide further
    reasons for why the trial judge found the complainants evidence to be credible.
    The changes between the Oral and the Edited Reasons are succinctly set out in
    the appendices to the respondent Crowns factum.

[9]

The changes in the Edited Reasons are both extensive and substantive.

[10]

A
    trial judges reasons are presumed to be an accurate reflection of the
    reasoning that led the trial judge to the decision. That presumption, while
    strong, can be rebutted by cogent evidence. For example, reasons given long
    after a verdict was rendered and subsequent to the commencement of an appeal,
    can compel the conclusion that the reasons are not an accurate reflection of
    the decision-making process engaged in by the trial judge and that the trial
    judge engaged instead in a result-driven consideration of the evidence. This is
    particularly true where  as here  the reasons were rendered after an appeal
    had been commenced:
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267, at
    paras. 18‑19;
R. v. Wang
, 2010 ONCA 435, 263 O.A.C. 194, at
    paras. 9-12.

[11]

In
Wang
, at para. 9, this court observed that it is inappropriate to modify,
    change or add to a transcript of oral reasons rendered in court. At a minimum,
    where oral reasons are given and written reasons issued sometime later, changes
    that represent something substantially different from what in fact occurred in
    the courtroom are not permitted:
Wang
, at para. 10.

[12]

The
    presumption of validity has been rebutted in this case by virtue of the
    substantive changes made in the Edited Reasons.

[13]

The
    Edited Reasons therefore cannot be relied upon to justify the convictions.
    However, the Oral Reasons remain intact. The appellant does not argue those
    reasons do not reflect the trial judges reasoning process. Instead, the
    appellant argues that reasoning process is legally flawed. The outcome of the
    appeal turns on those arguments: see
R. v. Arnaout
, 2015 ONCA 655, 127
    O.R. (3d) 241, at para. 60.

[14]

Therefore,
    only the Oral Reasons of 2017 will be considered in reviewing these grounds of
    appeal as they were issued contemporaneously with the appellants convictions and
    have not been disavowed.

THE SECOND
    ISSUE: WHETHER THE ORAL REASONS ARE SUFFICIENT TO JUSTIFY THE CONVICTIONS

[15]

The
    second issue is whether the Oral Reasons are sufficient to justify the verdict.

[16]

In
    this case, credibility was critical as there were no witnesses to any of the incidents.
    Considerable deference is afforded to trial judges who see and hear the
    witnesses firsthand, provided the reasons as a whole disclose an intelligible
    basis for the verdict:
R. v. G.F.
, 2021 SCC 20.

[17]

In
    order to assess whether the reasons are sufficient to justify the verdict, I will
    briefly review the evidence before addressing the legal issues raised and the
    reasons of the trial judge.

(1)

The Evidence Adduced at Trial

[18]

The
    appellant is the complainants father. At the time of trial, the complainant
    was 22 years old. She was born in Jamaica and moved to Canada in 2007. The
    appellant was the complainants immigration sponsor. The complainant lived with
    other family members until 2008, when she and her older sister moved into the
    home of the appellants friend Vivienne, where the appellant also resided.

[19]

The
    complainant says she was sexually assaulted by the appellant six times in 2008-2009,
    when she was 13 or 14 years old. She claims the assaults took place at Viviennes
    home, at a Motel 6, and in the bedroom of another apartment she and her father shared
    with others.

The complainants evidence

[20]

At
    the time of the first alleged assault, the complainant said she was sleeping in
    the basement of Viviennes house, lying on her stomach, when she felt the appellant
    touch her vagina over her clothes, shift her underwear to the side, and then
    penetrate her vagina with his penis. She said she did not remember if he
    ejaculated. She said she was shocked and confused but told no one.

[21]

The
    second incident is not the subject of this appeal, as the appellant was
    acquitted of this charge. I will describe the trial judges approach to this
    charge in greater detail below.

[22]

The
    complainant testified that the third and fourth incidents took place while she and
    her father were living in a Motel 6. On the third occasion, the complainant said
    she was in the bathroom when the appellant called her out, asked her to look
    through the window to see if a car was there, pulled her onto the bed, and had sexual
    intercourse with her. In so doing, she said the appellant pushed her toward
    him, took her towel off, shifted her underwear to one side and inserted his
    penis into her vagina. The complainant said she knew he was using protection
    because she could feel it though she did not see him putting it on. She claimed
    she was screaming.

[23]

On
    the fourth occasion, the complainant said the appellant approached her while
    she was sleeping on her stomach. She felt something on her thighs, the
    appellant shifted her underwear to one side and inserted his penis into her
    vagina. She testified that she was on her side when this happened. She said she
    asked him to stop but he did not. She did not know if he ejaculated.

[24]

The
    complainant testified that, on the fifth and sixth occasions, she and the
    appellant were sharing one room in a two-bedroom apartment. The second bedroom
    was occupied by two women tenants and a baby. The complainant said she was
    sleeping on a mattress on the floor, the appellant touched her legs and had
    intercourse with her. She did not remember if the other tenants were home or
    whether the appellant used protection.

[25]

On
    the sixth occasion, she said the appellant came into the room and asked her to
    take off her clothes. She replied Why? and he said, Just take off your
    clothes. She was wearing a tank top. She said he then grabbed her, put her on
    the ground and had intercourse with her. She did not remember whether he
    ejaculated. She said they fought and he punched her on the lips with a closed
    fist. She claimed her lips were bleeding. In cross-examination she said that her
    lips were cut on the inside.

[26]

Shortly
    thereafter, the complainant spoke to her school guidance counsellor and said
    she had been abused. She did not tell the counsellor the nature of the abuse. She
    was picked up by her aunt and spent the rest of the school year living with her
    grandmother.

[27]

She
    never lived with the appellant again and returned to Jamaica at the end of that
    school year. While in Jamaica, she registered a complaint to the Jamaican police
    about the alleged sexual assaults. Also while in Jamaica, she became pregnant
    by a boyfriend. The complainant said that when her father called and asked her
    if she was pregnant, she lied and said she was not. She later admitted that she
    was pregnant.

[28]

Her
    father arranged for her to return to Canada to have the baby. The complainant
    said she snuck her passport from her mothers home and did not tell her mother
    she was coming to Canada. When she arrived in Canada, in 2012, the complainant
    was told by her aunt that she would have to live with her father. The
    complainant refused and called police to report the allegations of sexual
    assault. The police interviewed her and sent her to a shelter.

Other Crown witnesses evidence

[29]

Viviennes
    daughter testified that, when she was 7 or 8 years old, she went into the
    basement of Viviennes home and saw the appellant lying on top of the
    complainant with sheets pulled over their shoulders. She said the appellant
    started yelling at her, telling her this was not her business and that she
    should leave. In cross-examination, she said he may have simply been reaching
    over the complainant to get to the television remote control. The trial judge
    concluded that the disparities in her account left him in a reasonable doubt
    about what she saw. As such, he did not rely on her evidence.

[30]

The
    appellants adult daughter also testified that, while living in Viviennes home,
    she saw the complainant and the appellant lying in bed together in an
    inappropriate position with the complainant on top of the appellant. She said
    that when she told the complainant that she should not be in that position at
    her age, the complainant did not react.

[31]

Vivienne
    testified and confirmed that the complainant preferred to sleep in the basement
    with her father despite having other sleeping options available. She said she
    never saw anything inappropriate take place.

The appellants evidence

[32]

The
    appellant denied all of the allegations of sexual assault. He admitted that he
    assaulted the complainant by hitting her and slapping her twice on the arm and
    may have hit her on the mouth. He said he did so after they had had an argument
    because the complainant kept coming home late. He testified that the day after
    their physical fight, the complainant went to school, and he heard from his
    sister that the complainant had gone to live with her.

[33]

The
    appellant testified that the complainant told him one of her friends falsely
    accused her father of sexual assault so that she would get her own place to
    live. He suggested that this was the complainants motive to fabricate the
    allegations.

[34]

He
    also testified that when she returned from Jamaica, she told him she wanted to
    go on welfare and live on her own. He told her she could not as he was her
    immigration sponsor and financially responsible for her. She left and never
    returned.

(2)

Analysis and Conclusion as to Whether the Verdict Was Justified

The law

[35]

Considerable
    deference is afforded to trial judges on findings of credibility as, unlike
    appeal courts, trial judges see and hear the witnesses firsthand:
R. v. M. (R.E.)
,
    2008 SCC 51,

[2008] 3 S.C.R. 3, at paras. 28 and 32. The reasons must however, when
    read in context of the record as a whole, disclose an intelligible basis for
    the verdict capable of permitting meaningful appellate review:
M. (R.E.)
,
    at para. 53;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras.
    10-19.

[36]

When
    assessing credibility and two different versions of events are presented, the principles
    set out in
R. v. W.(D.)
are to be applied. In short, (i) if the
    accuseds evidence is believed, the accused must be acquitted; (ii) if the
    accuseds evidence is not believed but the court is left in reasonable doubt by
    that evidence, the accused must be acquitted; and (iii) even if the judge is
    not left in doubt by the evidence of the accused, the court must still ask
    whether, on the basis of the evidence that is accepted, the court is convinced
    beyond a reasonable doubt by that evidence of the accuseds guilt.

[37]

Trial
    judges are not required to address every inconsistency in the evidence of a
    witness. They are however obliged to explain how they resolve major
    inconsistencies. Inconsistencies about which an honest witness is unlikely to
    be mistaken can demonstrate a carelessness about the truth while inconsistencies
    about peripheral issues are of less significance:
R. v. G. (M.)
(1994),
    93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also
R. v. Dinardo
,
    2008 SCC 24,

[2008] 1 S.C.R. 788, at paras. 30-31.

[38]

At
    issue in this case is whether, in convicting the appellant, the trial judge (a)
    failed to properly assess the material inconsistences in the complainants
    evidence and the reasons he gave for resolving the inconsistencies were
    illogical, (b) applied more scrutiny to the appellants evidence than he did to
    the complainants evidence, and/or (c) provided insufficient reasons.

The trial judges treatment of the appellants evidence

[39]

The
    trial judge made reference to
W.(D.)
, although he did not outline the
    elements of the three-part test to be followed when assessing credibility where
    there are two different versions of events presented. The trial judge
    recognized that this was a case that turned on credibility and noted that the
    burden of proof was on the Crown.

[40]

The
    trial judge recounted the testimony of each of the witnesses at trial.

[41]

He
    identified seven areas of concern in the appellants testimony. These are (i) the
    income the appellant reported to immigration authorities in support of his
    immigration application for his children; (ii) the duration and circumstances
    of his employment; (iii) how long he slept in Viviennes room and when he moved
    to the basement; (iv) the options available to him for sleeping arrangements
    when, according to him, the complainant insisted she wanted to sleep in the
    basement with him; (v) certain evasive answers given as to whether or not the
    complainant was sleeping with him in bed when Viviennes daughter came into the
    basement bedroom; (vi) his unresponsive and evasive answers given in
    cross-examination when asked whether he ever slept in the same bed as the
    complainant; and (vii) the appellants testimony in chief that he had no
    contact with the complainant after she moved to his sisters house in April
    (before moving back to Jamaica in July). However, in cross-examination, he
    spoke of drive-by sightings of the complainant during this period.

[42]

The
    trial judge concluded that [it is based on] the cumulative effect of all of
    these types of changes in the testimony and others that I will lay out in my
    transcribed reasons, that I conclude that [the appellant] was not being
    truthful and, in fact, I reject his evidence and conclude that it does not
    raise a reasonable doubt in my mind, nor do I accept it.

The trial judges rejection of certain evidence adduced by
    the Crown

[43]

The
    trial judge also did not accept the evidence of Viviennes daughter and the
    appellants older daughter that they had observed the appellant in bed with the
    complainant doing inappropriate things. The trial judge held that Viviennes
    daughter was very young when she made her observations. Several years have
    passed prior to her testifying in this trial and she said it was possible that [the
    appellant] was leaning over [the complainant] to get the remote. He concluded
    that her willingness to accept that it could simply have been an act of
    reaching for the remote create the doubt in my mind on what she saw.

[44]

He
    also rejected the appellants daughters evidence that she saw the complainant
    on top of the appellant in bed. In cross-examination she said that the
    appellant was sleeping when she made her observations about what she described
    as inappropriate. He concluded that her testimony does not add anything to
    the Crowns case Her evidence is inconclusive at best. Ultimately, I find
    it to be a red herring.

The trial judges treatment of the complainants evidence

[45]

The
    trial judge acquitted the appellant of the second instance of alleged sexual
    assault because the complainants inconsistency in versions of the events led
    him to have some concerns about her recollection of the events, leaving him in
    a reasonable doubt as to whether the events took place. Those versions of
    events are as follows:

i.

In examination-in-chief
    she said he pinched her vagina over her clothes but on cross-examination said
    he tapped her vagina. In re-examination she said it was a pinch;

ii.

In
    examination-in-chief she said that the appellant asked her if she liked it and
    she said no but on cross-examination she did not remember if he said anything
    to her; and,

iii.

On cross-examination she
    said the appellants hand was not just resting on her leg, then indicated that
    she did not recall his hand resting on her leg, and then said he was rubbing
    her leg with his right hand.

[46]

The
    trial judge reviewed her testimony and concluded that [a]t the very minimum,
    it leaves me in a reasonable doubt as to whether this specific incident she
    described actually took place. He therefore acquitted the appellant of this
    assault not on the basis of an adverse credibility finding, but rather, on the
    basis of the reliability of her evidence in respect of this one incident.

[47]

Importantly,
    the complainant was not cross-examined in respect of any of the other five
    assaults of which the appellant was convicted.

[48]

The
    trial judge found there was a second inconsistency relating to the complainants
    reasons for reporting the sexual assaults in 2012. In examination‑in-chief,
    she testified that she went to the police at her mothers urging after her aunt
    told her she was going to have to live with her father again. In cross-examination
    she denied that the only reason she reported the sexual assaults to the police
    was so that she would no longer have to live with her father. Later, in cross‑examination,
    she said she told the truth at the preliminary inquiry when she said that, in
    her mind, she disclosed the assaults because the only way to avoid living with
    her father was to go to the police.

[49]

However,
    the trial judge did not accept the defence theory that this demonstrated that the
    complainant was not believable and that her only motive in going to police was
    her desire to live on her own.

[50]

The
    trial judge correctly noted that the defence theory was belied by the fact that
    as early as 2010, the complainant had already made an allegation about sexual
    assault by her father to the police in Jamaica. This is before she had returned
    to Canada and before she had found out that at some point, she was going to
    have to live with her father. For this reason, this inconsistency did not
    adversely affect the trial judges assessment of the complainants credibility.

[51]

While
    summarizing her testimony, the trial judge noted that the complainants testimony
    contained several other inconsistencies between both (i) her prior statements
    and (ii) the appellants testimony, namely:

i.

She said
    she had little contact with the appellant as a child, growing up in Jamaica,
    though she later admitted she saw him regularly;

ii.

When she first
    came to Canada, she said she first stayed with her grandmother when it was in
    fact her aunt;

iii.

She initially said her
    aunt sponsored her to come to Canada, though she later acknowledged that the
    appellant was her sponsor;

iv.

She claimed the
    appellant owned a gun though the appellant denied this and there was no
    evidence he had one;

v.

She testified
    that she lied to the appellant about her pregnancy when she first became
    pregnant by her boyfriend in Jamaica; and,

vi.

She initially said
    that, after she reported abuse, her guidance counsellor told her to call 911. She
    later said she did not recall if she was told to call 911. When she was shown
    the preliminary inquiry transcript, she accepted that evidence that the
    counsellor did not tell her to contact police.

[52]

The
    trial judge concluded however that,

I find the inconsistencies in [the complainants] evidence,
    as I have already reviewed them to be minor, and thus I accept her testimony.
He held that upon the evidence, I do accept that the Crown has proven the
    charges against [the appellant] beyond a reasonable doubt, and therefore he is
    found guilty on all counts.

Analysis of the trial judges reasons for conviction

[53]

In
R. v. R.A.
, 2017 ONCA 714, 421 D.L.R. (4th) 100, this court reviewed
    the principles governing an appeal based on the trial judges assessment of
    credibility and resolution of testimonial inconsistencies. This court held, at
    para. 46, that an appellate court should not interfere with a trial judges
    findings of credibility if the core of the complainants allegations against an
    appellant remain largely intact on a review of the entirety of the evidence.

[54]

Moreover,
    in
R. v. A.A.
, 2015 ONCA 558, 337 O.A.C. 20, at para. 124, this court observed
    that:

Disagreement with the weight assigned does not ascend to the
    level of palpable and overriding error. Nor does the failure to consider
    inconsistencies on the periphery compel intervention in the absence of any
    obligation to consider and respond to each claim no matter how distant from the
    core issues of this case.

[55]

In
R. v. G.F.
, at paras. 81-82, the Supreme Court emphasized the
    deference owed to a trial judges credibility findings, the presumption that
    trial judges must be taken to know the law especially settled principles, and
    that reasons which are imperfect or language which is ambiguous does not
per
    se
require reversal.

[56]

The
    trial judge adverted to the well-known
W.(D.)
principles. After
    reviewing the evidence, he found that that the appellants testimony was
    evasive and contained inconsistencies such that he did not believe the appellant,
    and his evidence raised no reasonable doubt as to his guilt. There was evidence
    to support his conclusion such that, when read in context, they are sufficient
    to disclose an intelligible basis for the verdict.

[57]

While
    his explanation of how he assessed the complainants testimony thereafter was brief,
    the trial judge, while recounting her evidence in the Oral Reasons, provided
    some evaluation of its strength. He addressed the two material inconsistencies
    identified on appeal. Although there were several other inconsistencies in her
    evidence, he adverted to these inconsistencies in reviewing the evidence and,
    in my view, his reasons fairly characterized these inconsistencies as minor.

[58]

Given
    the considerable deference afforded trial judges when deciding issues of
    credibility, the fact that the trial judge did assess the material
    inconsistencies in both the appellant and the complainants evidence and provided
    some reasons for resolving the inconsistencies, when read in context, the Oral
    Reasons are sufficient to disclose an intelligible basis for the verdict. They
    reveal no uneven scrutiny of the evidence nor do they demonstrate a
    misapprehension of the Crowns burden.

DISPOSITION

[59]

For
    these reasons I would dismiss the appeal.

Released: June 15, 2021 D.D.

J.A. Thorburn J.A.

I agree. Doherty
    J.A.

I agree. K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tataryn v. Axa Insurance Canada,
    2021 ONCA 413

DATE: 20210614

DOCKET: C68084

Roberts, Miller and Thorburn
    JJ.A.

BETWEEN

Susan Tataryn and Susan G.
    Tataryn Professional Corporation

Plaintiffs (Respondents)

and

Axa Insurance Canada
    (now known as Intact Insurance Company of

Canada)
,
Charles McLeod
,
Irvin Hoffman and Cohen & Lord
    Insurance

Brokers Limited

Defendants (
Appellant
/
Respondents
)

Ashlee L. Barber, for the appellant

Brian C. Elkin, for the respondents,
    Susan Tataryn and Susan G. Tataryn Professional Corporation

Pasquale Santini, for the respondents,
    Irvin Hoffman and Cohen & Lord Insurance Brokers Limited

Kyle Dow, for the respondent, Charles
    McLeod, making no submissions

Heard: May 27, 2021 by video
    conference

On appeal
    from the order of Justice Pierre E. Roger of the Superior Court of Justice,
    dated January 20, 2020, with reasons reported at 2020 ONSC 375.

Reasons for
    Decision

[1]

The appellant insurer
    appeals
from the summary judgment granted in
    favour of Susan Tataryn and her professional corporation (the Tataryn
    respondents) and Irvin Hoffman and Cohen & Lord Insurance Brokers Limited
    (the respondent brokers).

[2]

Ms. Tataryns property was
    insured under a Homeowners Comprehensive policy with the appellant (the
    Policy). Ms. Tataryn purchased an additional Business Interruption
    Endorsement, as her property was also the place of business for her law
    practice.

[3]

Ms. Tataryn commenced
    renovations to the second and third floor of her property while she lived on
    the first floor. Following the commencement of these renovations, two incidents
    of water damage occurred on the property for which Ms. Tataryn sought
    coverage under the Policy. The appellant made some payments for the first loss,
    the renovations paused, and Ms. Tataryn moved out of the property.

[4]

The appellant denied
    coverage for the loss arising out of the second incident of water damage
    relying on the following highlighted provisions of the exclusion clause in the
    Policy:

We do not insure loss or damages [19.] caused
    by water unless loss or damage resulted from [(b)] the sudden and accidental
    escape of water or steam from within a plumbing, heating, sprinkler or air
    conditioning system or domestic water container, which is located inside your
    dwelling  but
we do not insure loss or damage [viii.] occurring while the
    building is under construction
, vacant, or unoccupied, even if we have
    given permission. [Emphasis added.]

[5]

The policy does not provide
    a definition of what is meant by a building under construction.

[6]

The Tataryn respondents
    commenced an action against the appellant, the respondent brokers and the
    respondent adjuster, Charles McLeod, for damages for the losses arising out of
    the two occurrences of water damage. The Tataryn respondents and the respondent
    brokers each brought motions for a declaration that the under construction
    exclusion clause did not apply. The motion judge granted the motion: he ordered
    that the appellant cannot rely on the under construction exclusion of the
    Policy as a defence at trial and dismissed the defence. The motion judge also
    dismissed the Tataryn respondents action and the appellants crossclaim
    against the respondent brokers insofar as they pertain to the under
    construction exclusion.

[7]

This appeal turns on the motion judges
    interpretation of the terms under construction in the Policy as applied to the
    state of the renovations that Ms. Tataryn was carrying out on her
    property.

[8]

The appellant argues that the motion
    judge erred in his interpretation of these terms because he failed to construe
    them in the entire context of the Policy and the limited risk covered under a
    homeowners policy of insurance as opposed to the risks covered in a builders
    risk or other construction-oriented insurance policy. The appellant urges this
    court to provide guidance on the meaning of under construction. Moreover, the
    appellant submits, the motion judge failed to consider the entirety of the
    evidence and focused too narrowly on the state of renovations following the
    second loss.

[9]

Notwithstanding Ms. Barbers able
    submissions, we see no error that warrants appellate intervention. The motion
    judge properly instructed himself on the applicable rules of contractual
    interpretation, including that he was required to give effect to the clear
    language of the policy, reading it as a whole. He considered the plain meaning
    of the term under construction, which he found to be unambiguous, and applied
    it to the entirety of the evidence of the state of the renovations to Ms.
    Tataryns property. There was extensive evidence before the court, including from
    the parties discoveries, affidavits, and cross-examinations. The motion judge concluded,
    correctly in our view, that the finding as to whether a property is under
    construction is a question of fact and that in this case, the extent of the
    renovations [is] not sufficient to support a finding that the house was under
    construction. As the motion judge noted, the fact that a house is being
    renovated does not necessarily mean that it is under construction:
Wilson v. INA Insurance Co. of Canada
(1993), 80 B.C.L.R. (2d) 361 (C.A.), at para. 16. Indeed,
    whether a property is under construction or merely under renovation is a
    question of degree and a question of fact. The motion judges determination
    that Ms. Tataryns property was not under construction was open to him
    on this record.

[10]

We decline the appellants invitation
    to furnish a definition of under construction that the appellant could have
    included in its standard form contract. We note that the appellant renewed the
    Policy after the first loss without introducing such a definition. Given the
    acknowledged fact-specific inquiry entailed in the determination of under
    construction, it is not possible nor desirable for us to give a definition
    that would apply to all cases:
Dodge
    v. York Fire Insurance Co.
, 1911
    CarswellOnt 41 (C.A.), at para. 12. As the motion judge observed, exclusion
    clauses in insurance policies are construed narrowly and the insurer bears the
    burden of proving the exclusion clause applies to limit coverage:
Progressive Homes Ltd. v. Lombard General
    Insurance Co. of Canada
, 2010 SCC 33,
    [2010] 2 S.C.R. 245, at para. 24. It is not this courts function to rewrite
    the parties agreement, especially those terms that the motion judge found, and
    the parties agree, are unambiguous.

[11]

For these reasons, we
    dismiss the appeal.

[12]

In accordance with the
    parties agreement, the Tataryn respondents and the respondent brokers are each
    entitled to their partial indemnity costs in the amount of $7,500, plus their
    respective disbursements and applicable tax. Since Mr. Dow attended on a
    watching brief for Mr. McLeod, filed no materials and made no submissions, he
    sought no costs, and none are granted.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jama, 2021 ONCA 415

DATE: 20210614

DOCKET: C63739

Hoy, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Libin Jama

Appellant

Libin Jama in person

Ingrid Grant, as duty counsel

Hannah Freeman, for the respondent

Heard: June 9, 2021 by video
    conference

On appeal from the sentence imposed on April
    20, 2017 by Justice Gary Trotter of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Ms. Jama appeals the parole ineligibility
    portion of the life sentence that she received on her conviction for second
    degree murder. The sentencing judge set the parole ineligibility period at 12
    years.

[2]

The appellant was one of three persons who was
    found guilty of murdering the victim as the result of a dispute. The victim was
    beaten, kicked and stabbed. The victim was 57 years old. His assailants,
    including the appellant, were all in their twenties.

[3]

Many of the appellants submissions relate to
    the finding of guilt. We note that her appeal of the murder conviction was
    earlier dismissed by this court.

[4]

The appellant also refers to the fact that five
    jurors recommended that parole ineligibility be set at 10 years, whereas four
    others recommended longer periods. The recommendations of the jurors are just
    that, recommendations. They are not binding on the sentencing judge. The
    sentencing judge considered the jurors recommendations but had to make his own
    determination of the appropriate period of parole ineligibility.

[5]

The sentencing judge considered all of the factors
    enumerated in s. 754.4 of the
Criminal

Code
and the relevant aggravating
    and mitigating factors. He concluded that the violent nature of the attack, and
    the age differential between the assailants and the victim, warranted an
    increase in the parole ineligibility period.

[6]

The appellant has failed to demonstrate any
    error in principle in the sentencing judges decision. There is no error of
    law, nor failure to consider a relevant factor, nor erroneous consideration of the
    aggravating or mitigating factors. Consequently, there is no basis for this
    court to interfere with the sentence imposed:
R. v. Friesen
,
2020
    SCC 9, 391 C.C.C. (3d) 309, at para. 26.

[7]

Leave to appeal sentence is granted but, while
    we commend the steps that the appellant has taken since her incarceration to
    improve her life, the appeal must be dismissed.

Alexandra
    Hoy J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Iqbal, 2021 ONCA 416

DATE: 20210614

DOCKET: C66276

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Iqbal

Appellant

Carlos Rippell and Marianne Salih, for
    the appellant

Emily Marrocco, for the respondent

Heard: April 16, 2021 by video conference

On appeal from the convictions entered by Justice Beth A. Allen of
    the Superior Court of Justice on October 11, 2018, with reasons reported at
    2018 ONSC 6033, and from the sentence imposed on December 19, 2018, with
    reasons reported at 2018 ONSC 7593.

Sossin J.A.:

OVERVIEW

[1]

On October 11, 2018, following a trial by judge
    alone,
the appellant was convicted of: (1) assault with a weapon,
    contrary to s. 267(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46; (2) possession of a weapon, contrary to s. 88(1) of the
Criminal Code
; (3) break and enter, contrary to s.
    348(1)(b) of the
Criminal Code
; and (4) theft
    under $5,000, contrary to s. 334(b) of the
Criminal Code
.
On December 19, 2018 the appellant received a global sentence of four
    years imprisonment on all counts.

[2]

The events giving rise to the convictions took place in the early
    morning hours of
October 26, 2015. The
    complainant alleged that a male stranger entered her apartment as she slept and
    threatened her with a knife.

[3]

Identity was the primary
    issue at trial. The complainant made an in-dock identification of the appellant
    as the intruder. The appellant, who also lived in the building, was the only
    individual depicted in video surveillance footage of areas near the
    complainants apartment around the time of the incident.

[4]

The appellant testified in
    his own defence and denied he was the intruder. To account for his appearance in
    surveillance footage at the relevant time, he testified that he had left his
    apartment and gone downstairs to his vehicle to retrieve his cell phone.

[5]

The trial judge found the
    appellant guilty on all counts. She was satisfied beyond a reasonable doubt
    that the complainant had correctly identified the appellant as the intruder. In
    reaching this conclusion, the trial judge rejected the appellants evidence and
    found that he had attempted to mislead the court by fabricating or concocting
    a false explanation for his whereabouts around the time of the incident.

[6]

The appellant appeals from his convictions and sentence.
With respect to his convictions, he contends the trial judge made five
    errors warranting appellate intervention: (1) failing to address weaknesses in
    the complainants identification evidence; (2) relying on the complainants
    in-court identification of the appellant; (3) mischaracterizing the appellants
    defence as one of alibi; (4) finding the appellants evidence was fabricated or
    concocted absent a proper evidentiary basis; and (5) misapprehending the
    surveillance video evidence.

[7]

For reasons that follow, I would allow the
    conviction appeal on the fabrication ground but find no errors in relation to the
    remaining grounds. I would therefore set aside the convictions and order a new
    trial on all charges.

[8]

In view of my conclusion on the conviction
    appeal, I need not address the sentence appeal.

MATERIAL FACTS

The incident

[9]

The complainant lived on the first floor of an apartment building
    at 43 Thorncliffe Park Drive in Toronto. In the early morning of October 26,
    2015,
the complainant was asleep in her
    bed with her young son and daughter. The complainant was awakened when she
    was shaken on the shoulder by a male stranger standing beside her bed.

[10]

When she saw the intruder
    standing by her bed, the complainant began to scream. She said the intruder tried
    to make her stop screaming. He put his index finger to his lips and made the
    sound, "sh-sh-sh". When this failed to silence her, the complainant said
    the intruder got close to her face, took out a knife, and put it to his lips.
    He then pointed the knife towards her chin. The complainant continued screaming
    madly. The intruder left the room and fled the apartment.

[11]

Once the intruder was gone, the complainant left
    her bedroom and saw that the front door to her apartment, which she had closed
    and locked before bed, was ajar. She then called 9-1-1. Officers arrived and spoke
    with the complainant. When speaking with the officers, the complainant noticed
    that her sliding patio door at the rear of her apartment was also open, despite
    having closed it before going to bed.

[12]

Police subsequently discovered that the knife
    the intruder had used belonged to the complainant. The complainant told police
    that she had left a knife with a purple handle on the dining room table before
    going to bed, but officers could not locate it anywhere on the premises.

The complainants attempts to identify the
    intruder for police

[13]

The complainant gave a
    statement to police shortly after the incident. In her statement she described
    the intruder as a brown male in his late 30s, approximately five feet six
    inches tall with short dark hair, thin build, and big eyes. She said he was wearing
    a leather jacket and a scarf around his neck during the incident.

[14]

In the course of their investigation, police
    reviewed the buildings CCTV video footage from around the time of the incident.
    That footage showed a man entering the buildings main lobby from the direction
    of the complainants first-floor apartment. The buildings security supervisor
    confirmed for police that the man depicted was the appellant, who lived in an
    apartment on the 21
st
floor of the building.

[15]

Police subsequently showed a photo lineup to the
    complainant which included a photo of the appellant. The photo of the appellant
    had been taken years earlier and showed him with a full head of black hair. The
    complainant did not pick the appellants photo out of the lineup. Nevertheless,
    police arrested the appellant nine days after the incident.

PROCEEDINGS AT TRIAL

The complainants evidence relating to identification

[16]

At trial, the complainant made an in-dock
    identification of the appellant as the intruder she saw in her bedroom. She also
    testified about the intruders appearance at the time of the incident.

[17]

During cross-examination, the appellants trial
    counsel confronted the complainant with several alleged inconsistencies regarding
    her identification evidence, including:

·

The complainant testified that the intruder was
    wearing a scarf during the incident. When confronted with still photos from
    surveillance footage of the appellant around the time of the incident, the
    complainant agreed he was not wearing a scarf.

·

The complainant told police and testified at the
    preliminary inquiry that the intruder had a moustache. When confronted with still
    photos from surveillance footage of the appellant around the time of the
    incident, the complainant agreed he did not appear to have a moustache.

·

The complainant indicated to police that the
    intruder was in his late 30s or early 40s. The appellant was 28 years old at
    the time of the incident. The complainant agreed with defence counsel that
    there was a fairly big difference between ages 28 and 40.

·

After first telling police that the intruder had
    short dark hair, the complainant later described the intruders hair colour as
    mostly grey. Surveillance footage from the day of the incident showed that the
    appellant was balding with black hair on the sides of his head.

The surveillance video evidence

[18]

Apart from the complainants direct eyewitness identification,
    the Crowns case against the appellant was circumstantial. The Crown theorized
    that the appellant had entered the complainants apartment through the patio
    door at the rear of the premises and fled through the front door. That theory rested
    primarily on circumstantial evidence relating to the appellants whereabouts
    around the time of the incident.

[19]

Specifically, at trial the Crown adduced a
    seven-minute compilation of time stamped video surveillance footage from various
    locations throughout the building around the time of the incident (the
    surveillance video). The police officer responsible for compiling the footage
    testified about the surveillance video and pointed out important time stamps.

[20]

The complainants 9-1-1 call was placed at approximately
    3:21 a.m. She estimated that the intruder had woken her up at 3:16 a.m. and
    that three to five minutes had elapsed between the time the intruder left the
    bedroom and when she had gotten out of bed and called 9-1-1.

[21]

Around these critical times, the appellant was
    the only person depicted on the surveillance video near the complainants apartment.
    According to the surveillance video, at 2:50:18 a.m. the appellant was near the
    rear exit door of the building using a handheld mobile device. At 2:50:45 a.m.,
    he opened the rear door, wedged a stick in the door to prop it open, and exited
    the building. At 3:21:48 a.m., the appellant was pictured entering the lobby from
    the hallway where the complainants apartment was located. He eventually took
    the elevator back up to his floor.

The appellants evidence regarding his
    whereabouts during the incident

[22]

The appellant lived on the 21
st
floor of 43
    Thorncliffe. He worked as a taxi driver.

[23]

The appellant identified himself on the surveillance video, conceding
    that he was the man seen leaving the hallway leading from the complainants apartment
    around the time the intruder fled and the 9-1-1 call was made.

[24]

However, the appellant denied he was the intruder. He explained his
    appearance on the surveillance video at the relevant times by stating he had
    returned to his taxi in order to retrieve his cell phone, which he had inadvertently
    left behind after his shift. He explained that he had decided to use the rear
    door to exit the building, which he knew could be propped open, when he realized
    he did not have his key fob to get back in.

[25]

The appellant stated that the mobile device he is holding in the
    surveillance video was an iPad Mini 2, not a cell phone. He testified that he
    was likely playing a game on the iPad as he walked.

[26]

The
    appellant further testified that when he retrieved his cell phone from the taxi,
    he noticed he had a missed phone call from his girlfriend. He said he remained
    in the taxi to wait for potential taxi calls. While sitting in his taxi, the
    appellant said he called his girlfriend back, a phone call he estimated had
    lasted approximately 25 minutes.
[1]

[27]

The appellants evidence was that he used a different route to
    return to his apartment than the one he had taken when going out to his taxi. This
    alleged route was not captured in the surveillance video as there was no
    security camera coverage along that route. The appellant said he took the alternate
    route because it was cold and he believed the stick he had used to prop open
    the rear exit door might have been cleared, so he decided to enter the building
    through a different door closer to where his taxi was parked.

[28]

On the appellants evidence, his eventual re-entry through this
    alternate route coincided with his appearance on the surveillance video near
    the complainants apartment shortly after the estimated time of the incident.

[29]

In cross-examination, the trial Crown challenged several aspects
    of the appellants evidence. Notably, based on the apparent size of the device
    in the appellants hands on the surveillance video, the trial Crown suggested that
    he was carrying a cell phone, not an iPad, and that he did not in fact go to
    his taxi. The appellant disagreed.

The trial judges key findings

[30]

The trial judge accepted the complainants eyewitness
    identification of the appellant as the man she saw in the apartment pointing a
    knife at her. She found the complainant credible, notwithstanding her failure
    to identify the appellant in the photo lineup: at para. 234.

[31]

In her reasons for judgment, the trial judge referred to the
    appellants evidence as to his whereabouts around the time of the incident as
    his alibi defence. She referred to his evidence about the return route he had
    allegedly taken through the building as the alibi route.

[32]

In support of the complainants identification
    of the appellant, the trial judge found that the Crown had disproved the
    appellants alibi defence by challenging as unreasonable the inference that
    the appellant had been elsewhere when the incident occurred. Relying in part on
    the surveillance video, she found the appellants alibi defence implausible
    and his credibility lacking. She specifically rejected the appellants
    contention that the video showed him holding an iPad, concluding that she
    believed he was carrying a cell phone. The trial judge therefore found that the
    appellant had concocted the 25-minute stay in his taxi to mislead the court
    as to his whereabouts at the time of the incident.

[33]

The trial judge also
    rejected the remaining aspects of the appellants defence, which were premised
    on the theory that the incident had never occurred. First, the appellant alleged
    that the complainant had made up the incident as an excuse to visit her husband,
    who had recently moved to Edmonton for work. The trial judge determined that
    this was not sensible. In the alternative, the appellant suggested that the
    complainant had simply dreamt the incident. The trial judge found no air of
    reality to this suggestion.

[34]

In light of the foregoing, the trial judge stated
    that the only reasonable conclusion to be drawn from the totality of the
    evidence was that the appellant was in the [complainants] apartment  when
    the crime was being committed. The trial judge found nothing to raise a
    reasonable doubt as to the appellants guilt of breaking into and entering the
    complainants apartment, assaulting her by threatening her with the knife taken
    from the dining room table, and then stealing the knife.

[35]

Accordingly,
the trial judge convicted the appellant on all four
    counts.

I
SSUES ON APPEAL

[36]

The
    appellant advances five grounds of appeal with respect to his convictions.
    Given the overlap between two of those grounds, which both relate to identification,
    the issues before me can be stated and approached conveniently as follows:

1)

The trial
    judge erred by relying on the complainants in-dock identification of the
    appellant without properly considering material inconsistencies in the
    complainants evidence on identification;

2)

The trial
    judge erred by finding the appellant had concocted or fabricated his evidence
    about his whereabouts around the time of the incident without independent
    evidence of fabrication;

3)

The trial
    judge erred by characterizing the appellants defence as one of alibi and
    drawing an adverse inference from the appellants failure to give the Crown
    advance notice of that alibi defence; and

4)

The trial
    judge misapprehended the surveillance video evidence.

[37]

I will consider each of these grounds of appeal in turn.

(1)

The Trial Judge Did Not Err Regarding the Identification
    Evidence

[38]

This prosecution turned on the identification of the intruder. Despite
    acknowledging alleged inconsistencies in the complainants evidence, the trial
    judge accepted her identification of the appellant. The appellant contends that
    in doing so, the trial judge erred by (a) failing to adequately resolve
    material contradictions in the complainants evidence on identification, and
    (b) erroneously relying on the complainants in-dock identification as
    important direct evidence of the appellants guilt.

[39]

As I will explain, I would not give effect to either submission.

(a)

The trial judge properly considered the impugned inconsistencies

[40]

In her analysis of the identification issue, the
    trial judge summarized the alleged inconsistencies in the complainants
    identification evidence, several of which I canvassed above. At paras. 197-98,
    the trial judge explained why these inconsistencies did not, in her view,
    undermine the complainants identification of the appellant as the intruder:

In assessing the identification evidence, the
    context in which [the complainant] formed a description of the intruder must be
    considered. I also have regard to the time lapse between the crime and the
    descriptions she gave in the years afterwards.

[The complainant] described her experience as
    very frightening. The incident happened quickly and within minutes the intruder
    ran out of the room. [The complainant] testified there was sufficient light in
    the bedroom coming from the lights in the hallway and the adjacent bathroom.
    She said there was sufficient light to see what the intruder looked like. He
    stood close to her face. It is understandable why [the complainant] might not
    be able to recount the finer details of his description given the speed with
    which the incident occurred and her shock and fear at an intruder being in her
    bedroom in the middle of the night with a knife trained on her while she lay in
    bed with her children.

[41]

Further, the trial judge found, at para. 199, that the
    complainants initial description of the intruder to police met the general
    description of the appellant. She noted that this was the description closest
    in time to the incident.

[42]

According to the trial judge, at para. 200, the alleged
    inconsistencies in the complainants identification evidence at trial could be
    explained by the exigencies of her experience and the passage of time. She
    held that inconsistencies in a witness testimony on minor matters or matters
    of detail are not unexpected, and witnesses are not held to a standard of absolute
    recall. These inconsistencies, which the trial judge described as minor, did
    not have an impact on her assessment of the complainants credibility: at
    paras. 201-202.

[43]

In my view, the trial judge properly considered the
    contradictions in the complainants evidence. It was open to her to find that,
    in the circumstances, these contradictions did not undermine the credibility of
    the complainant with respect to identification.

(b)

The trial judge properly discounted the in-dock identification

[44]

Moreover, the trial judge explicitly discounted the complainants
    in-dock identification of the appellant and addressed the complainants failure
    to identify the appellant in the photo lineup:

I find the fact that [the complainant] did not
    identify [the appellant] on the photo lineup is of little consequence since the
    photo of [the appellant] was taken years earlier when [the appellant] had a
    full head of black hair. Equally, her in-dock identification of [the appellant]
    as the intruder is of minimal consequence on its own since it is well-known
    that in-dock identification is notoriously unreliable and should be given
    limited weight  In-dock evidence is deceptively credible, largely because it
    is honest and sincere  I do not accept [the complainants] in-dock
    identification alone as evidence pointing to guilt. [Citations omitted.]

[45]

Contrary to the appellants submission, in my
    view this passage shows that the trial judge put little weight on the in-dock
    identification. Rather, she considered the in-dock identification as just one
    aspect of the totality of evidence before her relevant to the identification
    issue.

[46]

Accordingly, I find the trial judge committed no error in
    reaching her conclusions on identification stemming from the complainants
    evidence. She was entitled to accept that evidence as credible and to find
    that, despite inconsistencies on matters of detail, the complainant had
    reliably identified the appellant as the intruder.

[47]

However, the challenges with the identification evidence put
    added significance on the other evidence in the case and how it was treated by
    the trial judge. Indeed, the trial judge asserted, at para. 192, that her
    conclusion on the identification issue worked in conjunction with the
    circumstantial evidence of [the appellants] whereabouts at the time the crime
    was committed. At para. 203, she noted that any deficiency or doubt that
    might linger with respect to identity would be tempered if a material link
    could be established between the intruder and the male seen in the surveillance
    video walking near the complainants apartment shortly after the 9-1-1 call. At
    para. 234, the trial judge found that this link had been established, stating
    that the complainants identification evidence was bolstered by the Crowns ability
    to disprove the appellants testimony regarding his whereabouts when the
    incident occurred.

[48]

It is clear from these passages that the trial judges treatment
    of the appellants evidence as to his whereabouts was crucial to the outcome of
    this trial. As such, I will next turn to the alleged error made by the trial
    judge in considering that evidence.

(2)

The Trial Judge Erred in Drawing an Inference of
    Guilt from Disbelief

The issue stated

[49]

The
    appellant submits that the trial judge erred by jumping from disbelief of the
    appellants evidence to a finding that he deliberately fabricated his evidence.
    He contends that the trial judge failed to apply the legal principles governing
    fabricated exculpatory statements.

[50]

Specifically,
    the appellant argues that the trial judge required independent evidence of
    fabrication, apart from her disbelief of his alibi defence, to support her
    conclusion that his evidence was fabricated. The appellant says there was no
    such evidence. He contends the trial judge conflated disbelief and concoction
    by erroneously relying on inconsistencies between the appellants testimony and
    the surveillance video as proof that his evidence was not just false, but also concocted
    to avoid culpability.

[51]

I
    would allow the appeal on this ground. Before explaining the trial judges
    error in more detail, it is helpful to review the applicable legal principles.

The governing principles

[52]

It
    is well-established that a trier of fact cannot use their rejection of an
    accuseds testimony as a piece of circumstantial evidence to convict in the
    absence of independent evidence that the testimony was deliberately fabricated or
    concocted to avoid culpability:
R. v. Coutts
(1998), 40 O.R. (3d) 198 (C.A.), leave to appeal refused, [1998] S.C.C.A. No.
    450;
R. v. OConnor
(2002), 62 O.R. (3d) 263
    (C.A.);
S. Casey Hill, David M. Tanovich and Louis P. Strezos
,
McWilliams Canadian Criminal Evidence
,
5th ed. (Toronto: Thomson
    Reuters, 2019), at ch. 30-34.

[53]

In
Coutts
, at p. 203, Doherty J.A. explained the
    rationale underlying this rule:

If triers of fact were routinely told that
    they could infer concoction from disbelief and use that finding of concoction
    as evidence of guilt, it would be far too easy to equate disbelief of an
    accused's version of events with guilt and to proceed automatically from
    disbelief of an accused to a guilty verdict. That line of reasoning ignores the
    Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By
    limiting resort to concoction as a separate piece of circumstantial evidence to
    situations where there is evidence of concoction apart from evidence which
    contradicts or discredits the version of events advanced by the accused, the
    law seeks to avoid convictions founded ultimately on the disbelief of the
    accused's version of events.

[54]

In
    criminal trials, the distinction identified in
Coutts

between an exculpatory statement that is disbelieved,
    and one that is determined to have been fabricated or concocted to avoid
    culpability, is of critical importance. This is because a statement that is
    merely disbelieved is not evidence that strengthens the Crowns case, while a
    statement that has been deliberately concocted is capable of supporting an
    inference of guilt:
OConnor
, at para. 17. Distinguishing
    between disbelief and fabrication is thus essential to ensure triers of fact
    properly apply the burden of proof in cases where an accused testifies:
Coutts
, at p. 203.

[55]

Requiring
    independent evidence of fabrication helps to maintain this key distinction. The
    kind of evidence that may be considered independent in a particular case will
    depend in part on where the exculpatory statement at issue originated:
OConnor
, at paras. 22-23. Unlike with out-of-court
    exculpatory statements, the circumstances surrounding an accuseds in-court
    testimony, such as logical implausibility or internal inconsistencies arising
    from that testimony, cannot constitute independent evidence of fabrication:
OConnor
, at paras. 23-25;
R. v.
    Wright
, 2017 ONCA 560, 354 C.C.C. (3d) 377
,
at para. 48.

[56]

In
    other words, it is impermissible for a trier of fact who disbelieves an
    accuseds in-court testimony to make a finding of fabrication absent evidence
    that is independent of
both
(1) the evidence contradicting the accuseds
    testimony, and (2) the fact that the accused is found to have testified falsely
    at trial:
OConnor
, at para. 23;
Wright
, at paras. 46-48. For example, with respect to
    in-court exculpatory testimony, independent evidence of fabrication may arise from
    another witness testimony indicating that the accused attempted to persuade
    them to lie in court about the accuseds whereabouts at the time of the
    offence:
R. v. Hall
, 2010 ONCA 724, 263 C.C.C.
    (3d) 5, at para. 165, leave to appeal refused, [2010] S.C.C.A. No. 499.

[57]

The
    principles articulated in
Coutts

and
OConnor
regarding
    the distinction between disbelief and fabrication and the requirement for
    independent evidence of fabrication have been repeatedly affirmed and applied in
    Ontario and adopted by other Canadian appellate courts:
R.
    v. Hibbert
,
2002 SCC 39, [2002] 2 S.C.R. 445, at para. 57;
R. v. Bradey
, 2015 ONCA 738, 127 O.R. (3d) 721, at
    paras. 167-174;
R. v. Shafia
, 2016 ONCA 812,
    341 C.C.C. (3d) 354, at paras. 285-288, leave to appeal refused, [2017]
    S.C.C.A. No. 17;
R. v. Laliberté
, 2016 SCC 17,
    [2016] 1 S.C.R. 270, at para. 4;
R. v. Oland
,
    2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 64-72, leave to appeal refused,
    [2016] S.C.C.A. No. 188;
Wright
, at paras.
    38-45;
R. v. Al-Enzi
, 2021 ONCA 81, at paras.
    38-46.

[58]

When asked to review a trial judges use of disbelieved evidence arising
    from in-court testimony, this line of jurisprudence indicates that appellate
    courts should conduct four interrelated inquiries:

a)

Did the trial
    judge disbelieve the appellants testimony?

b)

If so, did
    the trial judge also find that the appellant fabricated their testimony?

c)

If the trial
    judge found the appellants testimony was fabricated, was there independent
    evidence of fabrication capable of supporting that finding?

d)

If not, did
    the trial judge, despite the absence of independent evidence of fabrication,
    erroneously rely on the finding of fabrication as circumstantial evidence of
    guilt?

[59]

As I explain below, in light of these inquiries, I conclude that
    the trial judge fell into error by drawing an inference of guilt based on her
    finding that the appellants evidence was fabricated, a finding which was
    unsupported by independent evidence of fabrication.

(a)

The trial judge disbelieved the appellants evidence

[60]

The trial judge clearly did not believe the appellants testimony
    as to his whereabouts at the relevant time, which she called the 25-minute
    alibi. She concluded, at para. 208, that the surveillance video showed the
    appellant carrying a cell phone before exiting the building, not an iPad Mini.
    This led her to reject the appellants explanation for his appearance on the
    surveillance video, which was that he had gone to his vehicle to retrieve his
    cell phone.

[61]

The trial judge further found, at para. 223, that the appellants
    evidence about the alibi route from his taxi back through the building and out
    of reach of the surveillance cameras simply does not have the ring of truth.

[62]

To be clear, as the appellant fairly concedes, it was open to the
    trial judge to disbelieve this evidence on the record before her. Indeed, the
    Crowns cross-examination of the appellant highlighted several implausible
    aspects of his account.

[63]

However, the trial judge went beyond mere disbelief of the appellants
    testimony; she made an express finding of fabrication.

(b)

The trial judge found that the appellant fabricated his evidence

[64]

Immediately after finding that the surveillance video showed the
    appellant carrying a cell phone, rather than an iPad, the trial judge reasoned
    as follows, at paras. 209-211:

Then the question is, why would [the
    appellant] not be truthful about what he had in his hands as he left through
    the rear door?

The cell phone takes on a pivotal role in [the
    appellants] alibi. To retrieve his cell phone is the reason he left the
    building through the rear door; it is his reason for remaining in the taxi
    after he retrieved messages from his girlfriend and speaking to her for 25
    minutes while he says he was waiting for taxi calls; it is the reason he took
    the circuitous route [back from his taxi], so he could get reception to
    retrieve voice mail and email messages about taxi customers. The cell phone
    provides the reason that he was not the intruder that invaded [the
    complainants] home.

So if he was not going to his taxi to retrieve
    his cell phone because he already had his cell phone that raises the question
    of where he was going and what he did after he left the building at 2:50:45
    a.m.
I am entitled to draw an adverse inference in relation to the 25-minute
    alibi and I do draw the adverse inference that at trial [the appellant]
    concocted the 25-minute stay in his taxi. One thing that becomes clear on all
    the evidence is that [the appellant] was not telling the truth about going to
    his taxi to retrieve his cell phone
. [Emphasis added.]

[65]

Elsewhere in her reasons, at para. 224, the trial judge stated
    that she believed the appellant concocted a rather elaborate account of his
    whereabouts at the critical time. At para. 232, she also referred to the
    appellants fabrications related to his cell phone and the concocted story
    about how he came to be in the hallway near the complainants apartment at the
    same time the intruder fled.

[66]

In my view, these passages show that the trial judge not only
    disbelieved the appellants account but found that he deliberately fabricated his
    evidence.

[67]

The authorities are clear that such a finding is impermissible
    absent independent evidence of fabrication. I will now assess whether any such
    evidence was before the trial judge in this case.

(c)

The trial judge did not identify any independent evidence of fabrication
    and there was none before her

[68]

In her reasons, the trial judge did not advert to the governing
    case law with respect to fabrication or explicitly refer to any independent
    evidence grounding her finding that the appellant had fabricated or concocted
    his evidence.

[69]

Where a trial judge fails to advert to independent evidence of
    fabrication, the jurisprudence indicates that an appellate court may assess
    whether the record reveals sufficient such evidence to show that the trial judges
    omission did not prejudice the appellant:
Wright
,
    at paras. 48-50;
R. v. Polimac
, 2010 ONCA 346,
    254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No.
    263;
R. v. Selvanayagam
, 2011 ONCA 602, 281
    C.C.C. (3d) 3, at paras. 31-33.

[70]

On the record before the trial judge, I find no independent
    evidence of fabrication that could support an inference of fabrication.

[71]

Crucially, this appeal involves in-court exculpatory testimony,
    as opposed to out-of-court exculpatory statements. As noted above, this limits
    the scope of independent evidence which could have properly grounded a finding
    of fabrication. Namely, circumstantial evidence suggesting the falsity of the
    appellants in-court statements could not also constitute independent evidence
    that those statements were fabricated.

[72]

However, this is precisely the type of evidence relied upon by the
    trial judge to support her finding of fabrication. No other witness provided
    evidence to contradict or challenge the appellants evidence as to his
    whereabouts at the time in question. Instead, the trial judge found the
    appellants evidence strained credulity based on several internal
    inconsistencies and logical improbabilities. She also relied on her assessment
    of the appellants demeanour as a witness to support her view that he had
    deliberately misled the court.

[73]

In accordance with
OConnor
,
these
    considerations cannot be properly characterized as evidence independent of the
    appellants testimony nor of the trial judges finding that his testimony was
    false.

The surveillance video was not independent evidence of
    fabrication

[74]

The trial judge also relied on inconsistencies between the
    appellants testimony and the surveillance video to conclude that the appellant
    had fabricated his evidence. The Crown argues that, if independent evidence of
    fabrication was required in this case, the surveillance video constituted sufficient
    such evidence to ground the trial judges adverse finding of fabrication
    against the appellant.

[75]

I do not agree. The surveillance video evidence was not
    independent of the appellants exculpatory testimony. The probative value of
    the surveillance video, according to the trial judge, was to show that the
    appellant was not telling the truth in his evidence about his whereabouts
    around the time of the incident. In other words, as in
Wright
,
    the evidence the Crown alleges to be independent evidence of fabrication is
    the very same evidence the trial judge relied upon in disbelieving the
    appellants testimony.

[76]

Accordingly, even if the trial judge had expressly relied on the
    surveillance video as independent evidence of fabrication, such reliance would
    have been in error. Simply put, it was not open to the trial judge to rely on
    the surveillance video as the basis on which to both disbelieve the appellants
    evidence and to make a finding of fabrication or concoction against him.

(d)

Despite the absence of independent evidence of fabrication, the trial
    judge erroneously relied on her finding of fabrication as circumstantial
    evidence of guilt

[77]

Having identified an erroneous finding of fabrication against the
    appellant, the only remaining question is: how did the trial judge use that finding?

[78]

The trial judges reasons indicate that she relied on her finding
    of fabrication to infer consciousness of guilt on behalf of the appellant. Specifically,
    at para. 211, the trial judge drew the adverse inference against the
    appellant that he had concocted his alibi defence at trial. This inference
    led the trial judge to conclude the appellant was hiding something and had
    attempted to mislead the court as to his whereabouts at the time of the
    incident.

[79]

These passages indicate that the trial judge not only rejected
    the appellants story as false, thus undermining his credibility, but that she
    then relied on her disbelief of the appellants evidence to infer that he must
    have deliberately fabricated that evidence to avoid culpability for the
    incident in the complainants apartment.

[80]

In my view, in light of the problems with the
    complainants identification evidence, this reasoning contributed to the trial
    judges decision to convict.

(e)

Conclusion on the fabrication ground

[81]

I would find that the trial judge drew an inference of guilt
    against the appellant based on a finding of fabrication. I see no independent
    evidence on the record before the trial judge that could have grounded such a finding.

[82]

Therefore, I would find that the trial judges inference of
    fabrication was in error. This erroneous reasoning was integral to the appellants
    conviction, particularly given the limitations in the complainants evidence on
    identification and the interdependence acknowledged by the trial judge between the
    identity issue and the appellants evidence as to his whereabouts. This
    interdependence reinforces my view that the trial judges improper finding of
    fabrication played a material role in her conclusion that the appellant was
    guilty.

[83]

Accordingly, I would find that the appellant
    succeeds on this ground of appeal.

(3)

The Trial Judges Reference to Alibi Was Not a Reversible Error

[84]

The
    appellant claims that the trial judge erred in referring to his evidence
    relating to his activities at the time of the attack as an alibi. The
    appellant argues that this evidence was not an alibi as it was not dispositive
    of his having committed the offence. He says the so-called alibi evidence,
    including regarding the phone call in the taxi, merely explained his movements
    that evening. Therefore, the appellant submits that the trial judge erred by
    characterizing this evidence as alibi and consequently drawing an adverse
    inference against him for failing to disclose it to the Crown in advance of
    trial.

[85]

In
    rejecting the so-called alibi defence, the trial judge concluded as follows,
    at para. 204:

I do not accept [the appellants] alibi defence. I arrive at
    this conclusion from
the accumulated effect of problems I have with the
    credibility and plausibility of [the appellants] account
of how he found
    himself walking down the north hallway at 3:21:48 a.m. on October 26th.
No
    singular problem with his evidence on its own leads me to my conclusion
.
    [Emphasis added.]

[86]

While
    not determinative to the outcome of this appeal, I have reservations about
    whether the appellants evidence was properly characterized as alibi. A true
    alibi places an accused elsewhere and does not implicate the accused in any
    way in the crime with which he or she is charged:
R. v. Wright
, 2009 ONCA
    623, 98 O.R. (3d) 665, at para. 24. The appellants explanation of his
    whereabouts did not place him elsewhere  it placed him right outside the
    complainants apartment around the time of the incident, albeit for an
    allegedly innocent reason. By characterizing this as an alibi defence, the
    trial judge improperly opened the door to consideration of the timeliness of
    its disclosure, resulting in clear implications for the appellants right to
    silence.

[87]

Given
    these concerns, in my view it would have been preferable for the trial judge to
    have avoided considering the timeliness of the disclosure in this case.

[88]

Nevertheless,
    I would find no reversible error with respect to the trial judges
    characterization of this evidence. The trial judge appropriately linked her
    rejection of what she called the alibi defence to her well-supported findings
    on the appellants credibility. In my view, it was open to the trial judge to
    reject the appellants evidence.

[89]

Indeed,
    the late disclosure of the so-called alibi was not the sole  nor even the
    primary  basis on which the trial judge rejected the appellants account.
    Rather, she rejected his evidence based on the accumulated effect of her
    overall assessment of the appellants credibility and the implausibility of his
    story. It is clear from the trial judges reasons that, however framed, she did
    not believe the appellant and his evidence did not leave her with a reasonable
    doubt as to his guilt.

[90]

Accordingly,
    I am not persuaded that the trial judges characterization of the so-called
    alibi evidence warrants appellate intervention.

(4)

The Trial Judge Did Not Misapprehend the Surveillance Evidence

[91]

The appellant raises the trial judges alleged misapprehension
    of the surveillance video evidence as a further ground of appeal. The time
    stamps from the various video surveillance cameras in the building were not
    aligned, such that some of the footage in the surveillance video adduced at
    trial showed inaccurate times.

[92]

Despite the trial judge acknowledging, at para.
    133, that the time stamps on certain cameras were not entirely in sync, the
    appellant contends the trial judge erroneously treated the surveillance video
    times as established evidence. The appellant takes particular issue with the
    trial judges conclusion, at para. 227, that the appellants appearance in the
    surveillance video time stamped at 3:21 a.m. showed that he was present in the
    hallway near the complainants apartment immediately after the incident.

[93]

I would not give effect to this submission.

[94]

There was evidence before the trial judge that
    the time stamps were fairly accurate. Moreover, the relevant times were not
    contradicted by the evidence of the appellant. In fact, the times estimated by
    the appellant were generally consistent with the surveillance video time stamps
    and with the time the complainant made the 9-1-1 call. Indeed, as the Crown
    points out, at trial all parties were aware that the surveillance video time
    stamps were not exact. At most, the defence suggested that some of the cameras may
    have been off by around two and a half minutes. Yet no one suggested that such
    a timing discrepancy, on its own, could have given rise to a reasonable doubt
    as to the appellants guilt.

[95]

Accordingly, I am not persuaded that the trial
    judge erred in her treatment of the surveillance video. In my view, the trial
    judges conclusions with respect to the surveillance video were well within her
    discretion as the trier of fact.

CONCLUSION

[96]

For
    reasons above, I would allow the appeal on the fabrication issue, set aside the
    convictions, and order a new trial on all charges.

[97]

In view of my conclusion on the conviction appeal, I do not reach
    the sentence appeal.

Released: June 14, 2021 J.M.F.

Sossin J.A.

I agree. Fairburn A.C.J.O.

I agree. Doherty J.A.

[1]

While
    an adjournment was granted to permit the Crown an opportunity to obtain the
    appellants phone records, they were unavailable due to the passage of time.