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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that:
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Strathy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.C.
Appellant
Alison Craig for the appellant
Christine Tier for the respondent
Heard and released orally: July 18, 2013
On appeal from the conviction entered on July 22, 2011 and the sentence imposed on September 30, 2011 by Justice T. David Little of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant appeals his convictions for assault with a weapon and sexual assault. He makes three submissions on his appeal: 1) the trial judge erred in his assessment of the complainant’s credibility and reliability; 2) the trial judge erred in holding that the Crown had proved that the appellant’s exercise of authority vitiated the complainant’s consent and; 3) the trial judge’s reasons for rejecting the appellant’s evidence were conclusory and inadequate.
(1) The trial judge’s assessment of the complainant’s credibility and reliability
2In his assessment of the complainant’s credibility, the trial judge was alive to the inconsistencies between her evidence and the evidence of the appellant’s daughter. In his view those inconsistencies were “overshadowed” by the consistencies in their evidence, specially their evidence that the appellant exercised a reign of power, fear and indeed, terror in the household. That was the trial judge’s call to make.
3The trial judge did not expressly refer to the reliability of the complainant’s evidence. It is understandable that he did not do so. The material acts giving rise to these charges were admitted by the appellant. The complainant’s evidence about those acts was not so lacking in detail to raise any concerns about the reliability of her evidence.
4Accordingly, we decline to give effect to this ground of appeal.
(2) The appellant’s exercise of authority
5To determine whether the complainant’s consent was vitiated, the trial judge applied the two-part test from Justice Fish’s judgment in R. v. Saint-Laurent and Justice Watt’s text on Bill C-127. Although the trial judge’s reasons are brief, his findings that the appellant was in a position of authority and used that authority to force the complainant to comply with his demands are fully supported by the evidence. The appellant used religious indoctrination to establish a hierarchy in which he was in power and the women in the household were subservient. He used that authority to force his will on the complainant. She testified at length that the appellant was in total control and that she acquiesced in his demands out of fear. At one point in her evidence, she testified poignantly:
I, I felt sick. Each time it happened I felt sick, but I felt that, at that point, that if I didn’t follow along, and that because I wasn’t broken, that I deserved what I was getting.
6Accordingly, we have no doubt on this record that the appellant’s exercise of authority vitiated the complainant’s consent. Thus, this ground of appeal fails.
(3) The trial judge’s reasons for rejecting the appellant’s evidence
7The trial judge’s reasons for rejecting the appellant’s evidence are brief. However, on our review of this record, the trial judge was entirely justified in disbelieving the appellant’s evidence. The case against the appellant was overwhelming. Moreover, as the Supreme Court of Canada has repeatedly said, a reasoned acceptance of a complainant’s evidence is a basis by itself for rejecting an accused’s evidence.
8Accordingly, the appeal is dismissed.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“G.R. Strathy J.A.”
