Navigating the criminal justice system is a challenging process, and a conviction at trial is often not the final outcome. The appeal process, however, is a highly technical and specific area of law. It is not, as many believe, a “second chance” to simply re-argue the case. An appeal court’s role is to review the trial record for specific errors of law or fact made by the trial judge.

A recent decision from the Court of Appeal for Ontario, R. v. H.P., provides a clear and powerful illustration of the high threshold an appellant must meet, especially in cases that hinge on credibility and the interpretation of key evidence. The appellant was convicted of several sexual offences against his 15-year-old stepdaughter. His appeal, which was ultimately dismissed, provides a compelling example of how appellate courts analyze a trial judge’s findings of fact, credibility, and the use of “real evidence,” such as an audio recording.

The Factual Background and the Trial Conviction

The appellant was convicted of sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault. The trial judge found that these violations occurred over approximately 20 months during nocturnal visits to the complainant’s bedroom.

The trial decision relied heavily on a single, powerful piece of evidence: an audio recording secretly captured by the complainant in her bedroom on November 3, 2019. The trial judge described this recording as “objective, compelling and persuasive evidence that wholly supports the complainant’s credibility and reliability.” She found it was fundamentally inconsistent with the appellant’s testimony.

The appellant raised numerous grounds of appeal, attacking the judge’s use of the audio, her understanding of it, her assessment of the complainant’s and his own credibility, and her rejection of the defence’s theory on motive. In dismissing every ground, the Court of Appeal reinforced the significant deference owed to trial judges on matters of fact and credibility.

The “Objective Evidence”: Analyzing the Audio Recording

The audio recording was the anchor of the Crown’s case and the trial judge’s decision. The appellant’s first two grounds of appeal were dedicated to arguing that the judge misused and misapprehended this central piece of evidence.

Ground 1: Unfair Trial from Audio Amplification?

The appellant argued that the trial judge’s amplification of the audio recording during her deliberations (after the trial had concluded) undermined the trial’s fairness.

The Court of Appeal flatly rejected this argument. It held that the recording was “real evidence” of what occurred. As such, a trial judge is not only permitted but expected to conduct a “close examination” of it before making factual findings.

The court noted that the recording had been played and replayed at full volume during the trial itself. The judge’s acknowledgment that parts became “clearly audible” when amplified during deliberations did not mean she discovered new evidence. It simply meant she carefully reviewed the evidence that was already properly before the court. The Court of Appeal found “no indication on the record that the trial judge discovered anything on the audio recording during post-trial deliberations that was not addressed during the trial.” This ground of appeal was dismissed.

Ground 2: Misapprehending the Recording’s Content?

The appellant’s second argument was that the trial judge simply misunderstood what was on the recording.

• The Appellant’s Version: He testified that the recording captured an innocent encounter. He claimed he was checking on the complainant’s injured ankle, gave her two “innocent goodnight kisses on the forehead,” and told her he loved her, which he said was their routine.
• The Trial Judge’s Findings: The trial judge, after a close examination, found the appellant’s account to be “demonstrably false and contrived and ma[de] no sense.”

The Court of Appeal found it was “entirely open” for the trial judge to reach this conclusion. The recording revealed a starkly different encounter from the one the appellant described:

• Five Kisses, Not Two: The appellant himself ultimately agreed that five kisses, not two, could be heard.
• Inconsistent Timing: The court noted a “time lag” between the kisses that was inconsistent with a “perfunctory kiss good night.”
• Missing Context: There was absolutely no reference on the audio to the complainant’s injured ankle.
• Damning Words: What could be heard were “sounds of rustling,” the complainant clearly saying “stop,” followed by the appellant whispering “okay,” “okay baby,” and “you okay baby.”

The trial judge was entitled to find, as she did, that the appellant’s whispering tone was “intimate, consistent with the sexual encounter that the complainant described.” The Court of Appeal found no error in this assessment.

The “Motive to Fabricate” Theory and Chronology

The defence at trial had advanced a “motive to fabricate” theory. The appellant argued that the complainant made the false allegation to get back at him for finding drugs she had hidden in the house, an event which had upset her mother.

Ground 3: Misapprehending Evidence of Motive?

The appellant argued that the trial judge misapprehended material evidence related to the chronology of this drug discovery. The judge had rejected the motive theory, noting “the chronology of events does not support” it. The appellant pointed to the complainant’s own testimony that her friend’s mother had confronted her about drug use just days before the police complaint, proving it was a “live issue.”

The Court of Appeal was unpersuaded. It dismantled this argument for several reasons:

No Misapprehension

The complainant’s testimony about her friend’s mother confronting her was not evidence that her own mother had requested this or that it was an ongoing concern for her mother. The trial judge’s conclusion that there was “no evidence” of “ongoing concerns” from the complainant’s mother at that specific time was correct.

No Miscarriage of Justice

Even if the judge had made a minor error in “misapprehending” this piece of evidence, the Court of Appeal held it would not have resulted in a miscarriage of justice. For an error to overturn a conviction, it “must have played a central role in the trial judge’s decision.” This evidence did not.

The “Burning Issue”

The trial judge’s reasoning on chronology was multi-pronged. She noted the drug discovery had happened many months before the complaint, making it a “longstanding issue” and unlikely to be the trigger. More importantly, the trial judge found the chronology supported the complainant’s own explanation for going to the police: she had reported the abuse to her mother twice and even played her the recording, but the abuse continued. The “burning issue” at the time of the complaint was the sexual abuse, not the drug use.

The Audio Trumps All

The most crucial reason the motive theory failed was not the chronology, but the audio recording itself. The trial judge rejected the theory that the complainant manufactured a false allegation “in large measure because of her finding that the audio recording confirmed the sexual assault complaints were not false allegations.”

Attacking the Credibility Assessment

In “he said/she said” cases, a trial judge’s assessment of credibility is paramount. An appellant faces an extremely high bar in convincing an appeal court that a trial judge’s credibility assessment was wrong.

Ground 4: Ignoring Inconsistencies in Complainant’s Evidence?

The appellant argued the trial judge erred by failing to address “significant inconsistencies” in the complainant’s testimony, which should have undermined her credibility. The only non-peripheral “inconsistency” raised was that the complainant’s friend testified the complainant disclosed the appellant forced her to “jerk him off,” “have sex,” and “put her mouth on [his genitals]”, which were labels the complainant herself did not use.

The Court of Appeal found no error. It noted that these “labels are capable of being applied to the acts the complainant described in her testimony.” It was not a “clear inconsistency.” Furthermore, no effort was made at trial (in cross-examination) to “flesh out” what the friend meant by those terms or what precisely the complainant had said to her. A trial judge is not required to address every minor or perceived inconsistency in her reasons explicitly.

Ground 5: Speculation About the Bedroom Lock?

The trial judge found that the undisputed fact that a lock was placed on the complainant’s bedroom door after she disclosed the abuse to her mother gave “plausibility” to the complainant’s story. The appellant argued this was “speculation.”

The Court of Appeal disagreed, calling it a “logical inference.” The judge reasoned that a parent who had just found their child was hiding drugs would be unlikely to permit a lock on that child’s door, unless “there was a more significant concern for her protection.” The sexual assault allegation provided a credible explanation. This was not speculation; it was a logical inference drawn from the unique facts of the case.

Errors in Assessing the Appellant’s Credibility

The final set of arguments focused on how the trial judge assessed the appellant’s own testimony.

Ground 6: Finding of “Fabrication” as Evidence of Guilt?

This is a critical, and often misunderstood, point of law. The trial judge found the appellant’s explanation for the audio was “demonstrably false and contrived” and that “he fabricated his explanation.” The appellant argued the judge improperly used this finding of a lie as affirmative evidence of his guilt.

The Court of Appeal clarified the distinction. It is an error for a judge to find a witness lied and then use that lie as circumstantial evidence of guilt (i.e., “He lied, therefore he must be guilty”) without independent evidence of fabrication.

Conversely, it is not an error for a judge to find a witness fabricated evidence when assessing the credibility of that witness (i.e., “He lied about this key fact, therefore I do not believe his other testimony”).

The Court of Appeal found the trial judge did the latter, permissible action. She used her conclusion that he “fabricated” his innocent explanation for the audio, as she was entitled to do, “in assessing his credibility.” There was “no indication that she relied upon these findings as affirmative evidence of his guilt.”

Ground 7: Misusing a “Prior Consistent Statement”?

Finally, the appellant argued the judge misused a “prior consistent statement”, the complainant’s initial complaint to her mother, where she played the audio. The rule against prior consistent statements holds that a witness’s credibility cannot be “bootstrapped” simply by showing that they have made the same statement in the past.

The Court of Appeal found the judge did not misuse this evidence. The statement was admitted for “narrative purposes”; to explain the circumstances of the confrontation between the mother and the appellant.

The judge did not use the content of the prior complaint to prove the assault. Instead, she used the event of the confrontation to assess the appellant’s reaction to it. The appellant testified that when confronted by his wife with the audio, he believed she was only upset about his practice of going into the room to say goodnight. The trial judge, having heard the damning content of the audio (with the “stop” and “okay baby”), found the appellant’s testimony about this confrontation “so implausible as to be incredible.” This was not an error.

The Ruling: Appeal Dismissed

This case is a stark reminder of the immense deference appeal courts give to trial judges on findings of fact and credibility. The appellant’s attempts to pick apart the judge’s reasoning with technical arguments about chronology, inconsistency, and speculation all failed. They failed because the trial judge’s central conclusions were anchored in a piece of “objective, real evidence” that she found “wholly” supported the complainant and proved the appellant’s version of events was “demonstrably false.”

For anyone involved in an appeal, this decision underscores that an appeal is not a fresh start. Success depends on identifying clear, material errors of law or palpable and overriding errors of fact; a very high bar to clear when the trial judge’s findings are supported by compelling evidence.

Contact Hicks Adams in Toronto for Knowledgeable Criminal Defence and Appeal Services

If you or a loved one is considering an appeal following a criminal conviction, especially in a case involving complex credibility assessments, it is essential to obtain experienced appellate counsel. At Hicks Adams, our skilled criminal appeal lawyers can review the trial record, evaluate whether any legal or factual errors occurred, and provide clear guidance on your options moving forward. Contact us online or call 416-975-1700 to schedule a confidential consultation.