RA was charged with sexual interference, invitation to sexual touching and sexual assault against a minor. The victim was RA’s daughter. The offences occurred when she was between the ages of 3 and 5 years old. The offences involved the accused having the complainant masturbate his penis until he ejaculated.

The victim testified. RA testified as well.

RA was convicted after trial. The trial judge note that the accused “testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence”, and that he “withstood cross-examination without a blemish” [para 4]. Notwithstanding these comments, RA was convicted. The trial judge accepted the complainant’s evidence in its entirety and found the offences were proven beyond a reasonable doubt.

RA appealed. The appeal was dismissed: 2017 ONCA 714.

On appeal RA raised the following points:

First, he submits that the trial judge failed to resolve a critical inconsistency in the complainant’s evidence and failed to explain why he accepted the complainant’s evidence and rejected the appellant’s. This ground was the focus of the appellant’s submissions during oral argument. Second, the appellant submits that the trial judge failed to consider innocent explanations for the complainant’s knowledge of a penis and sexual acts in determining whether a reasonable doubt arose. [Para 5].

On the issue of the trial judge’s explanation for accepting the complainant’s evidence and rejecting the accused’s evidence, the Court of Appeal offered the following:

This was a credibility case, and at the end of the day the core of the complainant’s allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant’s evidence, and ultimately decided to accept her evidence in its entirety.

The trial judge’s analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.

Although the trial judge’s reasons are relatively brief, they are responsive to the live issues in the case and the parties’ key arguments: R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant’s evidence, but nor did he reject it simply because he accepted the complainant’s evidence.

The trial judge was entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case. [Emphasis added]; [paras 53-56]

These comments are not novel: see for example R v PR, 2014 ONCA 131 @para 4; R v JW, 2014 ONCA 322 @para 26 and 30. Clearly, however, it seems they need to be reiterated. As the court notes, an acquittal is not necessary simply because a trial judge does not identify “obvious problems”. A reasoned acceptance, beyond a reasonable doubt, of the victim’s evidence is sufficient.

RA is a helpful reminder of a basic but important legal principle – take heed.

EH was convicted of sexual offences perpetrated against a 4yr old. Her video and audio recorded statement to police was tendered at trial pursuant to section 715.1 of the Code. She also testified via closed circuit television in accordance with section 486.2 of the Code.

The evidence revealed that on several occasions while sitting on a couch watching television EH took the child’s hand and placed it on his penis. EH would then remove her hand and tell the child that he loved her.

At trial, EH testified that on a single occasion, out of the blue, the child put her hand down his shorts and touched his penis; at the time he was not wearing underwear. EH said this caused him to panic- he ran upstairs put on pants, a belt and a shirt.

The jury convicted EH and he appealed: 2014 ONCA 622. One of the grounds of appeal EH argued was that although the trial judge had clearly stated in the pre-charge conference that a WD instruction would be given to the jury, the final charge did not include such an instruction or the functional equivalent thereof.

The Court of Appeal held that in these circumstances their task was “to determine whether the final instructions, viewed as a whole, would have left the jury under any misapprehension about the applicable burden and standard of proof” @para 6. The Court dismissed the appeal for four compelling reasons.

First, the Court noted “that the W.D. formula is not some magic incantation, omission of which is fatal” @para 9. What matters is whether the jury understood that that at the end of the day they had to simply chose between two competition versions of events. The Court found that instructions in substance did not leave the jury with an erroneous view.

Second, the Court held that the instructions on the core criminal law concepts of the presumption of innocence, the burden of proof and the standard of proof were all entirely complete and correct.

Third, the Court importantly noted that the charge does not take place in isolation. It is preceded by the closing addresses of counsel. Those addresses are not substitutes for a deficient charge but they “may fill some gaps left in the charge” @para 11. In this case the Court noted that “the closing addresses of both counsel tracked the W.D. framework. Nothing in the charge contradicted or qualified what counsel said” @para 11.

Lastly and perhaps not surprisingly the Court relied on the fact that EH made no objection to the charge at trial.

Although WD has been the subject of much judicial scrutiny, the decision in EH is not at all surprising when one considers the circumstances of the seminal decision itself. In WD the trial judge in fact erroneously instructed the jury that they were engaged in a credibility contest, yet the conviction was upheld. In EH the Court of Appeal clearly found the functional equivalent of a proper WD instruction even in the absence of the magic credibility incantation.