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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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
Doherty, Gillese and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.K.
Appellant
Richard Litkowski, for the appellant
Jason Gorda, for the respondent
Heard: July 20, 2015
On appeal from the convictions entered by Justice Gilmore of the Superior Court of Justice on November 5, 2013 and the sentence imposed on April 1, 2014.
1The appellant was charged with sexually assaulting his stepsister. The Crown alleged that the assaults occurred in Markham, Ontario and Picton, Ontario. The trial judge convicted on the charges relating to the events in Picton and acquitted on the charges relating to the events in Markham on the basis that the Crown had not proved that those events occurred after the appellant was 18. The trial judge imposed a sentence of 2 years, less a day, followed by 2 years' probation. The appellant appeals conviction and sentence.
I
THE CONVICTION APPEAL
2There are four grounds of appeal.
1: The alleged misuse of the appellant's statement to the police in the assessment of his credibility
3The Crown cross-examined the appellant on portions of a statement he had given to the police concerning the allegations. The trial judge concluded that several of the appellant's answers to questions about specific allegations made against him were equivocal and inconsistent with a reliable and credible denial. For example, the investigating officer asked the appellant whether the complainant ever touched his penis. The appellant responded, "not that I know of".
4Counsel for the appellant argues that the trial judge took these answers out of the context of the rest of the statement. The appellant expressly denied any sexual misconduct several times during that statement. Counsel also points out that the appellant testified that his answers were merely an attempt to search his memory back over 20 years to see if he could remember anything that might have been misconstrued by the complainant.
5The trial judge's characterization of some of the appellant's answers during the police questioning was open to her on the entirety of the evidence. Nor, in our view, is the negative impact of those answers on the appellant's credibility necessarily minimized by the more general denials in the statement of any criminal activity.
6The trial judge considered the appellant's answers to some of the specific allegations put to him in cross-examination as one of several factors that, in her view, undermined the appellant's credibility. She did not focus exclusively on a single answer or contradiction in the statement and did not misapprehend the content of the statement. The cases relied on by the appellant are distinguishable on their facts: e.g. see R. v. W. (J.S.), 2013 ONCA 593, [2013] O.J. No. 4409 at 47-49; R. v. T. (D.), 2014 ONCA 44, [2014] O.J. No. 255 at paras. 68-69.
7In summary, we see no error in the trial judge's conclusion that some of the answers given by the appellant in his statement of the police negatively impacted on the credibility of his evidence at trial. Ultimately, that factor, combined with the other factors identified by the trial judge, compelled her to conclude that the appellant's evidence did not leave her with a reasonable doubt on the charges arising out of the events in Picton.
2: Did the trial judge err in her identification of the factors relevant to the appellant's credibility?
8The trial judge specifically identified four factors that led her to conclude that the appellant's testimony was not credible. The first, some of the answers given by the appellant in his statement, is the subject of the first ground of appeal set out above. The other three factors – lies the appellant told the police about his father and his whereabouts, inconsistent statements by the appellant as to the quality of his memory, and the appellant's answers in cross-examination minimizing his opportunity to have assaulted the complainant, were all, on the trial judge's view of the evidence, properly used by her in assessing the credibility of the appellant's testimony.
9Other trial judges may have taken a different view of one or more of these factors. Any one of the factors standing alone may not have reasonably justified the rejection of the appellant's testimony. However, taken as a whole and placed in the context of the entirety of the evidence, we cannot say that the factors identified by the trial judge did not justify her conclusion that the appellant's evidence did not leave her with a reasonable doubt on the Picton-related charges.
3: The trial judge's approach to the evidence of the complainant
10The appellant submits that the trial judge focussed almost exclusively on the complainant's credibility or sincerity and failed to engage in a critical examination of the reliability of her evidence: see R. v. Sanichar (2012), 2012 ONCA 117, 280 C.C.C. (3d) 500 at para. 30 (Ont. C.A.), rev'd, 2013 SCC 4, [2013] 1 S.C.R. 54. Counsel points to the absence of any specific reference by the trial judge to the 20 years between the events in issue and the complainant's making of the allegations, a key factor in assessing reliability, as indicative of the trial judge's failure to address reliability.
11The trial judge reviewed the complainant's evidence at length (para. 113 and following) and in doing so addressed many of the arguments put forward by the defence at trial. For example, the trial judge considered the defence arguments that the nature and timing of the disclosures should negatively impact on the appellant's credibility. She gave reasons for rejecting that submission and concluding that the nature of the disclosure was consistent with both the reliability and credibility of the allegations (see paras. 113-117).
12The trial judge also considered many of the inconsistencies in the complainant's evidence advanced by the defence as undermining the reliability of her evidence. The trial judge said:
Ms. S.'s [the complainant] evidence was not perfect. I agree, she was even defensive at times, but looking at the inconsistencies as a whole, they do not shake my belief in the reliability of her evidence about these incidents.
13The trial judge's examination of the inconsistencies in the complainant's evidence was clearly directed at an assessment of the reliability of that evidence. A review of the entirety of the reasons as they relate to an assessment of the complainant's evidence compels the conclusion that the trial judge was alive to both credibility and reliability-related concerns when addressing that evidence.
14The appellant also focusses on the trial judge's observation at the end of her analysis of the complainant's evidence:
She [the complainant] believed that these things happened to her and this court does as well.
15This observation must be placed in the context of the preceding 40 paragraphs that contain a detailed analysis of the complainant's evidence directed at both credibility and reliability. Considered in that context, the trial judge's belief that the complainant was assaulted as she said she was flowed from a thorough examination of the credibility and reliability of the complainant's evidence.
4: The failure to consider the parts of the complainant's mother's evidence that favoured the appellant
16The trial judge concluded that the complainant's mother had a strong animus toward the appellant for reasons unrelated to these specific allegations. Because of that animus, the trial judge was not prepared to accept any part of the mother's evidence that inculpated the appellant unless it was consistent with the complainant's evidence.
17The appellant has no quarrel with the trial judge's treatment of the mother's potentially inculpatory evidence. He submits, however, that parts of the mother's evidence supported his position at trial and that the mother's animus towards him was no reason to reject that part of her evidence. Indeed, he submits that the mother's animus would tend to make that part of her evidence more credible.
18The logic of the appellant's argument cannot be denied, however, it does not get the appellant anywhere on the facts of this case. Opportunity was the only material issue on which the mother's evidence offered some potential support for the appellant's position. He maintained in his evidence that he had little, if any, opportunity to commit the assaults in the hot tub at the home in Picton. The trial judge accepted that the evidence supported "a somewhat diminished opportunity" to commit those assaults. In reaching that conclusion, the trial judge implicitly accepted the mother's evidence relevant to the question of opportunity, at least to the extent that it was consistent with the appellant's evidence. The trial judge went on, however, to find that although the opportunity to sexually assault the complainant in the hot tub may have been "diminished", there remained "sufficient opportunity for sexual activity in the hot tub". Nothing said by the mother in her evidence was capable of eliminating that opportunity.
19The conviction appeal is dismissed.
II
THE SENTENCE APPEAL
20In oral submissions, counsel for the appellant alleged a single error by the trial judge in her reasons for sentence. He submits that the trial judge properly placed the appellant's offence at the lower end of the sentencing range in respect of sexual assaults on children. He further submits, however, that the trial judge then, in imposing a sentence of 2 years less one day went well beyond the lower range of sentencing into the mid-range of sentencing for this type of offence.
21In the course of her thorough reasons for sentence, the trial judge said:
While one could never say that the actions of Mr. K. are excusable, they are, when considering a range of sentence, such that they should be considered to be in the lower end of the sentencing range with respect to the nature and type of act of abuse perpetrated by the victim.
22On our reading, the trial judge was addressing the nature of the conduct that constituted the sexual assaults in this case. She placed that conduct at the lower end of the range of conduct that could constitute the offence. She was not addressing the circumstances relevant to sentencing as a whole.
23Accepting the trial judge's characterization of the conduct as at the lower end of the sentencing range, but also having regard to the blatant breach of trust involved in these offences and the many occasions on which the appellant assaulted the complainant, we cannot say that the sentence imposed by the trial judge was unfit. We would grant leave to appeal sentence, but dismiss the sentence appeal.
24The appeals from conviction and sentence are dismissed.
Released: "DD" "JUL 29 2015"
"Doherty J.A."
"E.E. Gillese J.A."
"David Brown J.A."
