WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
CITATION: R. v. G.G., 2013 ONCA 367
DATE: 20130604
DOCKET: C52644
Blair, Hoy and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.G.
Appellant
Jill Presser and Lucy Saunders the appellant
Mabel Lai, for the respondent
Heard: June 03, 2013
On appeal from the conviction imposed by Justice F.P. Kiteley of the Superior Court of Justice dated July 20, 2010.
APPEAL BOOK ENDORSEMENT
1The appellant seeks to set aside his convictions for sexual assault in relation to T.B. and N.L., the daughter and niece, respectively, of his common law spouse, C.B.
2Ms. Presser raises eight grounds of appeal on his behalf but concentrated on three in oral argument, relying on the submissions in her factum for the remaining five. We did not call on the Crown to respond to those five issues, as we are not persuaded the trial judge erred on those points.
3In oral argument, the appellant submitted that the trial judge erred (1) in applying an uneven scrutiny to her assessment of the credibility of the appellant and the complainants; (2) by failing properly to resolve the inconsistencies in the complainants’ testimony, particularly that of T.B.; and (3) by failing to give the defence an opportunity to respond to a “critical” finding in relation to the evidence of C.B. (i.e. that the appellant and C.B. exaggerated about T.B.’s behaviour towards the younger children before she left the home, which the appellant says was founded upon the misapprehension that only one of the younger children had been born at that time.)
4We would not give effect to any of those submissions.
5First, as Ms. Presser candidly acknowledged, the argument that a trial judge has subjected the evidence to unbalanced scrutiny is “a difficult argument to make successfully” and the test is “rigorous”. The unbalanced scrutiny “must be clearly demonstrated in the reasons for judgment or elsewhere in the trial record”. See R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59.
6That test is not met on those reasons. The trial judge gave careful reasons why she rejected the appellant’s testimony in its entirety, and equally careful reasons why she rejected some, but not all of T.B.’s evidence and why there was enough support and corroboration in the evidence she did accept to rehabilitate T.B.’s overall credibility in her eyes. We see no uneven scrutiny of the evidence.
7Secondly, the trial judge adequately dealt with the inconsistencies in T.B.’s evidence. She addressed what she considered to be “the unbelievable explanations” for the differences between T.B.’s evidence at trial and what she had said on previous occasions. We take this to include what Ms. Presser referred to as “the torpedo of lies”. The trial judge rejected those portions of T.B.’s evidence. At the same time, she accepted other portions and explained what evidence she did accept and why. At the end of the day, she concluded that “while I do not accept all of [T.B’s] evidence, the evidence I do not rely on does not undermine the evidence that I do no find credible and reliable”. This finding was open to the trial judge on the evidence in our view and we see no error in the way in which she arrived at it.
8Finally, we are not persuaded that the trial judge was obliged to confront C.B. with the internal inconsistency in her evidence arising from her testimony that she had two children in the home at the time T.B. left the home at age 9 and the birth dates she gave in response to a question from the trial judge which showed that the second child was born a few weeks after the departure (in fact, it appears the second child was born two weeks before). The trial judge gave defence counsel the opportunity to follow up on the answer regarding the birthdates of the children and defence counsel did not do so. There may have been legitimate tactical reasons for that decision as the correction may have undermined C.B.’s credibility and reliability. In any event, while the trial judge mentioned the fact that the second child had been born after T.B.’s departure in her assessment of the “exaggeration” finding, we do not think the fact that the child was 2 weeks old at the time of departure would have had any less impact on the view that the appellant and C.B. were exaggerating.
9Accordingly, we do not think the fresh evidence tendered (correcting the birthdate of the second child) would have any meaningful affect on the outcome of the trial and for that reason would not allow the fresh evidence application.
10We would not give effect to this third ground of appeal.
11The appeal is therefore dismissed.
“R.A. Blair J.A.”
