Sufficiency of reasons -- the saga continues

Sufficiency of reasons has been a reoccuring issue recently in the Court of Appeal. One aspect of the caselaw seems to be the view that, just because a judge does not avert to an issue does not mean one can assume the judge failed to consider it. Today's decision in R. v. Cooper, 2010 ONCA 201 seems to be a bit contrary to that view. Perhaps it is merely a matter of degree but Cooper seems to imply a failure to deal with evidence in reasons can be treated as if the evidence was overlooked:

[4] The trial judge appears to have addressed the question of whether the Crown had proved the absence of consent beyond a reasonable doubt on the premise that the complainants were adults and were in a position to determine for themselves whether they were prepared to agree to the activities in question. The complainants were young adults, although C.B. is somewhat intellectually challenged.

[5] Normally, the premise relied on by the trial judge would be entirely appropriate. However, in this case, there was substantial evidence that this was far from a normal situation involving potentially consenting adults. There was evidence that the respondent ran his household in a very authoritarian manner, relying on supposed religious doctrine to justify his demands and his claim to have authority over all who were within the household. There was evidence from several witnesses that the respondent acted as if he was entitled to do whatever he wanted to do and that the occupants of the home were expected to submit to the respondent's demands.

[6] The trial judge's reasons do not come to grips with the question of whether the apparent consent by the complainants was vitiated by the respondent's exercise of authority over them. In addition, the reasons do not address the claim by W.W. that she consented out of fear of physical violence on the part of the respondent.

[7] The trial judge makes no reference to the operative provisions of the Criminal Code (s. 265(3)(b) and (d). More importantly, the trial judge never addresses any of the evidence that is relevant to these questions. It is clear from the Crown's submission that it was the Crown's theory that any apparent consent was vitiated by either threats of force or the exercise of authority. The failure to address that issue constitutes an error in law.