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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. C.C., 2015 ONCA 59

DATE: 20150202

DOCKET: C55755

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

Erika Chozik, for the appellant

Christine Tier, for the respondent

Heard: December 5, 2014

On appeal from the convictions entered on April 17, 2012 and the sentence imposed on June 26, 2012 by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting without a jury.

Pardu J.A.:

A. Overview

1The appellant, C.C., was accused of repeatedly sexually touching a young girl and having intercourse with her over a period of approximately four and a half years, beginning when the complainant was around seven years old and continuing until she was 11. The last incident of intercourse she described occurred on July 17, 2009 or the early morning hours of July 18, 2009. A complaint was made soon afterwards. A vaginal swab taken on July 20, 2009 found a sperm cell inside the girl’s vagina, just beyond the hymen. The complainant also testified that the appellant sometimes showed her images on his computer of adults having sex with young girls. Police found those kinds of images on computers used by the appellant in his home.

2The appellant appeals from convictions for sexual assault, sexual interference and possession of child pornography. He also seeks leave to appeal from the six-year sentence imposed, and seeks leave to admit fresh evidence that he says undermines the factual findings upon which the convictions were based.

3For the following reasons, I would dismiss the conviction appeals, grant leave to appeal sentence but dismiss the sentence appeal, and dismiss the application to introduce fresh evidence.

B. Background

4The appellant was formerly married to the complainant’s mother, S.T. They had two children together, C.C. and M.C., aged 24 and 21 at the time of trial. S.T. subsequently had two other children: the complainant, aged 11, and K.N., aged 7 at that time. The complainant and K.N. often spent time at the appellant’s home. He testified that he treated the complainant like his own daughters, C.C., who lived with him, and M.C., who lived with her mother S.T.

5On July 17, 2009, S.T. asked the appellant if he would look after the complainant and K.N. that evening, as well as a friend of the complainant, L.A., then nine years old. He agreed and all three girls were dropped off at his home around 11:00 p.m. At first, the girls stayed upstairs to watch a movie, but then they lost interest in it, and went downstairs to watch something else. The complainant went back upstairs, and according to L.A., had been gone for 20 or 30 minutes when L.A. went upstairs to look for her. L.A. saw the complainant get a drink in the kitchen and both girls returned to the basement.

6The complainant told her friend L.A. that the appellant was touching her and trying to have sex with her, and that her older half-sister M.C. would also do bad things to her. The complainant told L.A. not to tell anyone, and that she had a knife and would hurt L.A.’s brother if she told.

7The complainant’s mother S.T. returned to the appellant’s home around 3:00 a.m. to pick L.A. up and take her home to her own mother. The complainant was awake, but K.N. was asleep and S.T. left them at the appellant’s home.

8Later that weekend, L.A. told her mother what the complainant had described to her. L.A.’s mother and the complainant’s mother, S.T., began exchanging text messages. The messages from L.A.’s mother described the complainant touching L.A. and K.N. under their panties, and threatening them if they told anyone. L.A.’s mother subsequently told S.T. that the complainant had also told L.A. that the appellant had touched her.

9S.T. invited L.A. and her mother, as well as the appellant’s daughters, M.C. and C.C., over to her house. S.T. told M.C. and C.C. before they arrived at S.T.’s home that there was an allegation that their father had sexually interfered with the complainant. When everyone had arrived, S.T. sought to question the complainant in the living room. She asked M.C. and C.C. to leave the room. S.T. asked the complainant if the allegations that the appellant had touched her were true. The complainant initially denied them, but quickly started to cry and said they were true.

10S.T. took her daughter to the Hospital for Sick Children where she was examined and samples were taken. She was interviewed by police and a Children’s Aid Society worker.

11At trial, the complainant’s evidence was that the appellant had had intercourse with her on that weekend. She said it hurt and she asked him to stop, but he would not. She said that, on another occasion, he put gel on her vaginal area and used a vibrator on her. She said that he sometimes showed her videos of adults having sex with little girls. When she questioned him about why he was abusing her, he threatened to do the same to her little sister if she did not comply.

C. The Conviction Appeal

12The appellant argues that the trial judge erred in the following respects:

1. He erred in his treatment of evidence of other sexual activity involving the complaint, more particularly:

a) He refused to allow the defence to question the complainant about whether she sexually touched her seven-year-old sister K.N. and nine-year-old friend L.A.

b) Although he allowed the defence to ask questions about an alleged sexual assault on the complainant by her older half-sister M.C., he erred in failing to consider whether a potentially false complaint about this assault by the complainant undermined her credibility.

2. He failed to consider the evidence on the child pornography count separately from the sexual assault and sexual interference counts and did not deal with the moral prejudice which might flow from the association of these different offences on the indictment.

3. He misapprehended the evidence regarding the appellant’s police statement and the use of his computers, and failed to consider potentially exculpatory evidence.

13I now turn to each of the grounds of error said to justify setting aside the convictions.

(1) The complainant’s alleged sexual activity with K.N. and L.A.

14The appellant brought an application pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, seeking to cross-examine the complainant about sexually touching her friend L.A. and her mother’s other daughter K.N. He submitted to the trial judge that this evidence was relevant for two purposes:

1. To show that the complainant might have acquired sexual knowledge from sources other than the appellant.

2. To show that the complainant feared she might be in trouble for her own misconduct, and alleged sexual improprieties by the appellant to deflect attention from her own misbehaviour.

15The evidence presented on this aspect of the s. 276 application was thin. L.A. said she once woke up to find the complainant in her bed, looking for her teddy bear. The complainant was touching L.A.’s body and legs, specifically, her shin. There was also an allegation, conveyed through L.A., that the complainant touched K.N. on her arms and legs while at a pool.

16The trial judge refused to allow the appellant to cross-examine the complainant on her alleged sexual touching of K.N. and L.A. He ruled:

In examining the nature of the alleged sexual touching reported by L.A. with respect to [the complainant] and herself and [the complainant] and [K.N.], there is nothing, in my view, that suggests the touching was of a sexual nature or it is in any way similar to the alleged sexual abuse by the applicant. The applicant in this instance shall not be permitted to cross-examine the complainant on that information. It does not import any reasonable inference as to the complainant’s level of sexual knowledge. There is no reasonable basis, on its face, of the prospect of the evidence assisting the Court in arriving at a just determination in this instance.

17The trial judge was correct to dismiss this aspect of the s. 276 application for the reasons he gave. The nature of the alleged conduct does not support the inference that the complainant acquired sexual knowledge from someone other than the appellant. There is no suggestion that L.A. or K.N. imparted knowledge to the complainant about the kinds of sexual acts the appellant was alleged to have performed. The conduct attributed to the appellant is far different from what may or may not have occurred between the complainant, L.A. and K.N. Furthermore, given the nature of the conduct attributed to the complainant in the s. 276 application – touching L.A. and K.N. while looking for a teddy bear and while at a pool, respectively – it is hard to believe that she would have fabricated such grave allegations against the appellant in order to distract from her benign conduct.

18Defence counsel at trial had in their possession transcripts of the text messages exchanged between S.T. and L.A.’s mother. In those messages, L.A.’s mother described seeing the complainant “mounting” L.A., and related that L.A. alleged that the complainant fondled both her and K.N. under their panties and threatened them if they told anyone. Defence counsel did not support their s. 276 application with this evidence, but reserved it for use in cross-examining S.T., after both the complainant and L.A. had testified.

19When defence counsel raised the text messages during the cross-examination of S.T., they submitted to the trial judge that they intended to use the transcripts for a limited purpose only: to have S.T. confirm the messages did not contain any mention of assaults by the appellant, and to thereby suggest S.T. fabricated the allegations against the appellant, or suggested them to the complainant. Defence counsel said they would not question S.T. about the complainant’s alleged sexual activity with L.A. and K.N.

20The trial judge acceded to defence counsel’s proposal:

The court: I understand that. All right, I understand that it’s really what’s not in there [that] is the thing of importance as far as the defence is concerned, and to that extent questioning will be permitted on these chats.

21The trial judge confirmed he would disabuse himself of the evidence he heard in the s. 276 application about the complainant’s alleged sexual contact with L.A. and K.N.:

The court: Just – and in terms of it being filed, it having been made reference to, I can certainly disabuse myself of the contents that I’ve already referred to in light of the nature of the information referred to in my earlier ruling. So it’s not – we don’t have a problem of excising because of the presence of a jury in this trial.

22The appellant now submits that the trial judge ought to have revisited his ruling on the s. 276 issue in light of these text messages, which were not in the Crown’s possession, and were produced for the cross-examination of S.T. The trial judge was not asked to revisit his ruling. L.A. and the complainant had already been cross-examined.

23Given the position taken by defence counsel, he did not err.

24The trial judge’s ruling did not prevent witnesses from being examined on the circumstances surrounding the disclosure of the complainant’s allegation of sexual touching, whether she was pressured to make that allegation, or whether she made the allegation to deflect attention from misconduct on her own part. Defence counsel went so far as to ask the complainant in cross-examination, in violation of the trial judge’s ruling, whether she had engaged in sexual touching of L.A. She denied it.

25The trial judge did not err in his treatment of this issue.

(2) The complainant’s alleged sexual activity with M.C.

26The appellant sought to cross-examine the complainant under s. 276 regarding sexual activity with her half-sister M.C., for the same purposes:

1. To show that the complainant had sexual knowledge from sources other than the appellant.

2. To show that the complainant fabricated the allegations because she feared the consequences of her own sexual activity with M.C.

27The complainant alleged that her half-sister M.C. put ice cream on her own vagina and made the complainant lick it off, and that M.C. made the complainant straddle her while M.C. gyrated against her in a sexual way.

28The basis for the s. 276 application was that these allegations by the complainant were true. The defence argued that the complainant had sexual knowledge because of her prior sexual activity with M.C., and not because of any sexual contact with the appellant. This argument presupposes that the sexual activity with M.C. in fact occurred.

29The trial judge allowed the complainant to be questioned about the alleged sexual contact between her and M.C., despite some dissimilarity between the conduct alleged to have been committed by M.C. on the one hand, and the appellant on the other. The evidence of M.C.’s sexual touching could have some probative value on whether the complainant acquired sexual knowledge from someone other than the appellant.

30Defence counsel examined M.C. at trial about the truth of these allegations and she denied them. The complainant reiterated her allegations.

31However, in closing submissions, rather than taking the position that the allegations against M.C. were true, as had been advanced in the s. 276 application, defence counsel submitted that the complainant’s allegations about M.C. were false. On appeal, the appellant now argues that the trial judge erred in failing to consider the complainant’s possible false allegations against M.C. when he evaluated her credibility.

32The trial judge did not err in failing to consider this evidence for that purpose. As indicated in R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 52, the argument that “a complainant who accuses two persons of sexual impropriety occurring at different times and in different circumstances is more likely to be lying about either or both than a complainant who accuses only one person” cannot be sustained (emphasis in original). The fact that a complainant made allegations of sexual abuse against another person is not admissible to suggest a pattern of false accusations, or to undermine a complainant’s credibility, unless those allegations were recanted or are demonstrably false: R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] 2 S.C.R. x.

33In this case, given the complainant’s and M.C.’s contradictory testimony, there was no basis for concluding that the complainant’s allegation against M.C. was demonstrably false.

(3) Use of child pornography evidence between counts

34The appellant argues that the trial judge erred in failing to confine the evidence about child pornography to the count alleging possession of that material, and in failing to conduct a similar fact analysis of that evidence before using it on the counts of sexual assault and sexual interference. He submits that the trial judge erred in failing to expressly deal with the risk that a trier of fact might conclude that someone who possessed child pornography was a person of bad character who therefore likely committed the sexual assaults.

35There is no indication that the trial judge used the child pornography evidence for any improper purpose. Even in the absence of the count of possession of child pornography, the child pornography evidence would have been admissible to confirm the complainant’s evidence that the appellant showed her those images in the course of the assaults. In addition, the complainant provided direct evidence that the appellant knew about the child pornography on his computer, and that it was there for his use. The evidence of the presence of child pornography was relevant to both the sexual assault and sexual interference counts, and to the possession of pornography count. In this judge-alone trial, the trial judge was not obliged to expressly warn himself about moral prejudice.

(4) Misapprehension of evidence and failure to consider exculpatory evidence

(a) Limewire evidence

36The appellant submits that the trial judge erred in rejecting his explanation for re-installing Limewire software on his computer, after having previously deleted it. Limewire is a file sharing program that could be used to access files of various kinds, including child pornography or music. The trial judge rejected the appellant’s explanation that he used the program to access music because “[h]e said he could download music but he did not play it afterwards. He never played music on his computer.” The Crown acknowledges that while the appellant did not play music on his computer, he did say that he could play music on his iPod.

37The trial judge’s misapprehension of the evidence – that the appellant could not listen to music downloaded through Limewire at all – was inconsequential in this trial because of the appellant’s own evidence about his use of his computer.

38The appellant testified that, in January or February 2009, he noticed that the Limewire program was open and might have been actively downloading material. He looked in the file he had designated to store Limewire downloads and found files he thought were pornography, though he testified he was unsure of whether they were child pornography. However, the names of the files were highly suggestive of child pornography. He deleted those files and uninstalled Limewire. He testified that many other people visited his home and had access to his computer. Several months later, he reinstalled Limewire because he said there was a particular song he wanted to download. When the appellant learned from his daughters that the complainant was accusing him of sexual misconduct, he immediately went to his computer and deleted more files containing child pornography. This was before he knew that the complainant had alleged a connection between the viewing of child pornography and the sexual assaults. The appellant testified that he deleted the files to prevent police from finding them. He said that someone else must have downloaded the files between January 2009 and July 2009.

39The trial judge could and did draw inferences about the appellant’s knowledge of the child pornography and its use in the commission of the sexual assaults from the appellant’s actions in deleting the files as soon as he learned of the complainant’s allegations. The trial judge characterized the deletion of the child pornography in July 2009 as “an attempt to destroy evidence that [the appellant] knew would support what she said he had done.” Furthermore, the trial judge rejected the appellant’s suggestion that he did not know the files he deleted in January or February were child pornography, given the highly suggestive titles the appellant agreed he had seen. Given the number of files, and their various creation dates, the trial judge rejected the appellant’s claim that some other person must have come into the home and downloaded the child pornography.

40Here, the trial judge’s misapprehension of the evidence – his failure to understand that the appellant could play downloaded music on his iPod – was peripheral to his reasoning and did not play an “essential part in the reasoning process resulting in a conviction”: see R. v. Bains, 2012 ONCA 305, 291 O.A.C. 135, at paras. 11-15, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541. The force of the misapprehension pales in comparison to the inferences drawn from the appellant’s own evidence.

(b) The police interview

41The appellant also submits that the trial judge misapprehended the evidence when he concluded that the appellant had lied to police. The exchange in issue during the interview with police was as follows:

Officer: Okay, so this is completely way out of left field that, that, now which one of the girls is making the allegation?

[Appellant]: I don’t know.

Officer: You don’t know which one? Okay. Does it, it, this come way out of left field that one of them would say something like this?

[Appellant]: To me, yeah.

42However, M.C. and C.C. told their father on the day before that the complainant was saying he had sexual contact with her. In other words, he knew that the complainant had made the allegations against him.

43The trial judge concluded:

His response, “I don’t know” was in reference to the question as to whether he knew which one had made the allegation. The officer confirmed his answer when he said, “you don’t know which one”. His subsequent response, “to me, yeah” is responsive to the question with respect to whether the allegation came out of left field. His attempt to explain it otherwise in the trial was obvious prevarication.

44This was the trial judge’s call to make and I see no basis to intervene.

45There were several problems with the appellant’s credibility. He testified at trial on cross-examination:

Q. Now, in terms of your statement to the police, one of the other questions that you chose to answer was, when the police asked you: “Are we going to find any child pornography on your computer?”

A. Yes.

Q. And you answered them and you said: “No.”

A. Yes.

Q. And that is because you were confident that you’d taken the step to delete LimeWire from your computer the night before, correct?

A. Um, yes.

46Shortly afterwards, however, when asked whether the files he deleted in July 2009 “had terms relating to sex and to children”, he replied, “Yes. Well, related to sex.” Furthermore, as the trial judge observed, his previous claim that he did not know the files he deleted in January or February 2009 were child pornography was belied by the very explicit titles he said he saw and removed.

(c) Failure to consider exculpatory evidence

47The appellant also submits that the trial judge failed to give effect to exculpatory evidence, for example, the presence of DNA from at least four different males on the complainant’s pyjamas.

48The forensic biologist testified at trial and indicated:

Q. All right. And in terms of what was analyzed coming from the pants…

A. Correct.

Q. … you told us that you found a mixture essentially of D.N.A. from at least four males.

A. Correct.

Q. It might have been five. It’s impossible to say?

A. Correct. And it could also be trace amounts of female D.N.A., but our male D.N.A. technology won’t find that.

Q. And in terms of the sources of that D.N.A., there’s a long list of possibilities obviously.

A. Yeah, because there’s a small amount of D.N.A. present even sitting on a small amount of cellular material potentially could transfer to the pajamas and be the source, yes, from an external application.

Q. Right. And that list could cover possibilities from saliva to nasal secretions to trace amounts of blood not visible to the naked eye, to handling dandruff, to semen, impossible to be specific. Right?

A. Correct.

49The trial judge recognized this evidence and gave it appropriate weight. He specifically acknowledged that the DNA from at least four males could have gotten on the complainant’s clothing through innocuous means.

50The appellant also argues that the configuration of his computer and the child pornography files did not share the characteristics associated with a serious collector of child pornography. For example, the appellant did not control access to his computer with a password. He deleted material he thought inappropriate in January or February 2009, and again in July. The trial judge was not obliged to conclude from this that the appellant had nothing to do with the child pornography on his computer, especially in light of the appellant’s own evidence.

51No error has been demonstrated in the judge’s treatment of the evidence which would justify intervention.

D. Fresh Evidence

52The appellant also seeks to introduce fresh evidence. According to an affidavit sworn by the appellant, following the trial judgment, the appellant learned that his brother, who had had free access to the appellant’s home and computer, was accused of sexual offences by his own step-daughter. Furthermore, according to the appellant’s affidavit, the brother told the appellant he had used the appellant’s computer to watch and attempt to download pornography. There was other evidence the brother had an interest in adult pornography. The appellant submits that the proposed fresh evidence is capable of raising a reasonable doubt as to whether he downloaded the child pornography found on his computers.

53According to the material filed by the Crown, the 17-year-old step-daughter S.R. and the brother’s 16-year-old niece Y.R. alleged that they were sexually assaulted by both the appellant and the brother. S.R. subsequently recanted her allegations about the brother, but maintained that the only thing that was true in her statement to police was the allegation about the appellant. The brother pled guilty to common assault of Y.R. Both Y.R. and S.R. refused to cooperate with police investigating the appellant’s role in any assault.

54It is difficult to see how this fresh evidence could be of any assistance to the appellant. Even if one were to accept that the brother downloaded some form of pornography on the appellant’s computer, that is not at all inconsistent with the appellant knowingly possessing child pornography on that computer. This evidence does not meet the cogency test for admission of fresh evidence. As indicated in R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 67:

The proffered evidence must be relevant to a potentially decisive issue; the evidence must be reasonably capable of belief; and the evidence must be sufficiently probative that when taken with the rest of the evidence adduced at trial, it could reasonably be expected to have affected the result.

55As I discussed above, the conclusion that the appellant knew there was child pornography on his computer is inescapable from his own evidence at trial.

56The proposed fresh evidence is not “sufficiently probative that when taken with the rest of the evidence adduced at trial, it could reasonably be expected to have affected the result.”

E. The Sentence Appeal

57Following conviction, the Crown sought a global sentence of five years: four and a half years for the sexual offences, and six months consecutive for possession of child pornography. The defence submitted that a global sentence of three years would be sufficient.

58The trial judge imposed a global sentence of six years: five years for the sexual assault and sexual interference offences, and one year consecutive for possession of child pornography.

59This was not a joint sentencing submission, so the factors that constrain a judge from departing from a joint submission do not apply.

60Here, the sentence imposed was fit. The appellant was an adult offender, in a position of trust, who engaged in repeated sexual abuse of a young girl. He groomed her by showing her child pornography and threatened to abuse her sister if she told anyone. According to the trial judge, the victim suffered “serious psychological and emotional trauma with the potential to scar her for life. Her family has been torn apart. She has lost her relationship with her older sisters. She was robbed of her childhood innocence, she now fears men and her future when and if she forms a relationship.”

61The trial judge expressly applied the sentencing principles set out in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), and reiterated in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81.

62I do not accept the argument that he used the absence of remorse as an aggravating factor.

63The sentence imposed was well within the range for offences of this nature and there is no basis to intervene.

F. Conclusion

64For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence but dismiss the appeal from sentence, and dismiss the application to admit fresh evidence.