W A R N I N G
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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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).
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
Simmons, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
R.B.
Appellant
James Foord, for the appellant
Lisa Joyal, for the respondent
Heard and released orally: November 12, 2008
On appeal from the conviction entered on July 13, 2007 by Justice A.D. Sheffield of the Superior Court of Justice.
1After a trial by judge alone, the appellant was convicted of touching for a sexual purpose, invitation to sexual touching and sexual assault in relation to his five-year old daughter, K.B. He was subsequently sentenced to 18 months imprisonment, followed by three years probation. He appeals his convictions, arguing that the trial judge erred by:
(1) misapprehending certain of the evidence at trial and failing to appreciate alleged inconsistencies in K.B.’s evidence;
(2) applying a stricter standard of scrutiny to the appel-lant’s evidence than to K.B.’s evidence, resulting in an improper shifting of the onus of proof to the appellant; and
(3) admitting the unsworn evidence of K.B. in the absence of her promise to tell the truth, contrary to s. 16.1(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5.
2In oral argument, the appellant did not pursue his third ground of appeal. For the following reasons, we would not give effect to his remaining grounds of appeal.
I. Background
3In March 2003, the Ottawa Children’s Aid Society (the CAS) commenced an investigation of the appellant’s household after receiving an anonymous tip that the appellant may have physically abused K.B. During the investigation, K.B. alleged that the appellant had sexually abused her. As a result of this disclosure, K.B. was placed in protective foster care for one month. Ultimately, no charges were laid and K.B. returned home. The appellant, who had moved out of the family residence during the inves-tigation, returned home in February 2004, subject to supervision by the CAS for six months.
4On New Year’s Eve of 2004, K.B. and her cousin were left with a babysitter. When her cousin became homesick and upset, K.B. tried to cheer her up by saying that she was used to staying away from home because of her time in foster care, which had happened because of what she had said about her father, and that she did not speak about those things anymore. The babysitter, who had no knowledge of the prior CAS investigation, was surprised to hear this statement and a week later decided to tell K.B.’s mother what she had heard.
5At trial, K.B.’s mother testified that she was unsure what to do when she heard about K.B.’s statement and that she had been convinced that K.B.’s 2003 allegations were false. Eventually, she sought counselling advice and, acting on that advice, contacted the CAS. She then moved out of the house, taking K.B. with her, and moved in with a man with whom she had been having an affair.
6The CAS and the police interviewed K.B. over the next two days. During these interviews, K.B. stated that, “My daddy made me touch his private parts.” K.B. said that this happened on weekend mornings while her mother was asleep and K.B. was alone with her father. She also said that the appellant had warned her that if she told anyone what had occurred, “You’ll go to a foster home again.”
7There was evidence at trial that K.B. had seen her parents having sex with each other on some occasions. In addition, the appellant acknowledged at trial that he and K.B. watched television together on weekend mornings while his wife slept. He also admitted that K.B. had once seen pornography on television at home when he fell asleep and mistakenly forgot to turn off the television. The defence also called a neighbour of the family, B.M., who testified that she was a guest every Saturday morning in the appellant’s home and had never seen any inappropriate conduct by the appellant.
II. Discussion
(1) Alleged Misapprehension of Evidence
8In his reasons, the trial judge noted several admissions made by the appellant at trial. In particular, he stated that the appellant had admitted that K.B. had watched pornography on television on at least one occasion and that, in relation to this viewing, the appellant told K.B.: “Don’t tell anybody or you’ll go back to foster care.” The appellant asserts that this was a serious misapprehension of the evidence of the admissions made by the appellant, warranting appellate intervention. We disagree.
9In his trial testimony, the appellant confirmed that on one occasion he had fallen asleep while pornography was on television, that the pornography was still playing when K.B. later awakened him, and that when he awoke, he told her: “Don’t tell mommy or daddy will get into trouble.” During the 2003 investigation by the CAS, the appellant made similar admissions to a CAS caseworker. He also told the caseworker that K.B. had “seen too much sexual interaction which was inappropriate for her age”.
10The trial judge’s description of the precise statement made by the appellant to K.B. on this occasion was inaccurate, as was his depiction of the evidence of some of the other details related to the pornography incident. However, in our view, these errors did not play an essential part in the trial judge’s reasoning process leading to the appellant’s convictions. On the contrary, the reasons reveal that the trial judge fully appreciated the nature and significance of the real issue: the appellant’s admission that K.B. had viewed pornography and his assertion, advanced at trial, that this viewing helped to explain why a prepubescent girl could describe acts of fellatio and intercourse. The trial judge simply rejected, as he was entitled to do, the defence claim that the evidence of this incident and of K.B.’s viewing of her parents in sexual contact fully explained the content of her allegations of sexually abusive conduct by the appellant and supported the defence assertion that K.B. had fabricated her allegations. The trial judge’s misstatements of some of the details of the evidence of this incident were not material to his conclusion, on all the evidence, that the events alleged by K.B. had occurred.
11Nor do we accept the appellant’s contention that the trial judge materially misapprehended B.M.’s testimony. The trial judge concluded that B.M.’s evidence was deserving of little weight. The reasons indicate that the trial judge understood B.M.’s claim that she was present at the appellant’s home for several hours every Saturday morning when K.B. alleged that the abusive conduct had occurred. If B.M.’s testimony on this issue was accepted, it followed that little, if any, opportunity existed for the appellant to have committed the acts described by K.B.
12However, neither K.B. nor her mother testified that B.M. was at their home every Saturday morning. Moreover, both the appellant and K.B. testified that they were alone when they watched cartoons together on Saturday mornings while K.B.’s mother was asleep. Thus, on this evidence, the opportunity existed for the offences to have occurred. At the conclusion of trial, the appellant himself recognized the frailties of B.M.’s evidence and placed little reliance on it. In closing submissions, his counsel told the trial judge, “I am not putting a lot of emphasis on [B.M.’s] evidence.”
13We are also not persuaded that the trial judge failed to appreciate the inconsistencies in K.B.’s version of events. The trial judge concluded that, “the crux of the complainant’s allegations had remained constant” and that: “The complainant never wavered or recanted the nature of her complaints or the manner in which she endured the sexual acts”. [Emphasis added.]
14Although parts of K.B.’s trial testimony were inconsistent with some aspects of her statement to the police and her evidence at the preliminary inquiry, the trial judge’s conclusions regarding the core elements of her testimony are supported by the record. Indeed, the appellant’s trial counsel acknowledged as much during his closing sub-missions at trial when he indicated that, notwithstanding the inconsistencies and contra-dictions in K.B.’s evidence, she was never shaken with respect to aspects of her main allegations.
15The trial judge’s assessment of K.B.’s credibility was based on his recognition of the principles that guide the evaluation of the evidence of children: see for example, R. v. F. (C.C.) (1997), 1997 CanLII 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.). He was not obliged to recite each inconsistency in K.B.’s evidence in his reasons. We see no error in his approach to the assessment of her testimony.
(2) Suggested Reversal of Onus of Proof
16The appellant also argues that the trial judge erred by applying a stricter standard of scrutiny to the appellant’s evidence than he did to that of K.B., thereby reversing the onus of proof. Again, we disagree.
17As the appellant indicated before this court, this argument is linked to the appellant’s contention that the trial judge materially misapprehended the evidence. We have already rejected that contention.
18This is not a case where the trial judge reached a conclusion on K.B.’s credibility before considering the defence evidence or the defence position on the central issues at trial. This fact distinguishes this case from many of the cases relied on by the appellant. Apart from the principles that apply generally to the evaluation of a child’s evidence, the appellant has been unable to point to any examples from the trial judge’s reasons to support his claim that the trial judge improperly applied a more exacting standard to the appellant’s evidence than he did to that of K.B.
III. Disposition
19Accordingly, for the reasons given, the appeal is dismissed.
“Janet Simmons J.A.”
“Eleanore A. Cronk J.A.”
“David Watt J.A.”