R. v. Vlaski, 2019 ONCA 927

SUFFICIENCY OF REASONS - PRIOR CONSISTENT STATEMENTS - UNEVEN SCRUTINY

Sufficiency of Reasons

 A sufficiency of reasons argument can only succeed where an appellant establishes that the trial judge’s reasons are so deficient that meaningful appellate review is foreclosed. A trial judge’s reasons, however, must be read in the context of the parties’ positions at trial. If defence counsel does not raise an issue at trial, they cannot later assert on appeal that the trial judge’s reasons were insufficiently responsive to that issue. Moreover, a trial judge is not required to address (in great detail) peripheral matters in their reasons for judgment.

Prior Consistent Statements

A prior consistent statement cannot be used to confirm the truthfulness of an allegation. It can, however, be used “for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” (R v Dinardo, 2008 SCC 24). This “narrative as circumstantial evidence” exception allows trial judges to rely on prior consistent statements to assess the reliability and truthfulness of the declarant.

Uneven Scrutiny

To succeed on an uneven scrutiny argument, the appellant is required to establish that the trial judge applied different standards of scrutiny to the Crown and defence’s evidence. As established in R v Radcliffe, 2017 ONCA 176, it is insufficient that a different trial judge would have assessed credibility differently. In this case, the trial judge explicitly reminded himself of this obligation in his reasons. There is no evidence that the trial judge considered the complainant’s evidence with less scrutiny than that of the appellant.

Hourigan JA, writing for the court, dismisses the appeal.