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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(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.
486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
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.
486.6(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 Information
Court of Appeal for Ontario
Date: 2017-01-17
Docket: C60927
Panel: Simmons, Pardu and Miller JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Michel Roy Appellant
Counsel
Michael A. Crystal, for the appellant
Peter Scrutton, for the respondent
Hearing and Appeal
Heard: October 11, 2016
On appeal from the conviction entered on June 15, 2015 by Justice Laurie Lacelle of the Superior Court of Justice, sitting without a jury.
Endorsement
[1] Introduction
The appellant appeals against convictions for touching a person under the age of 16 years for a sexual purpose in relation to the complainant J.S. and sexual assault in relation to the complainant E.J.
Background
[2] The Circumstances and Parties
The complainants were friends – 15 and 16 years old, respectively – at the time of the events. They were sleeping together on a table that converted into a bed in the appellant's camping trailer when the events occurred. They had attended a birthday party the previous evening at the campground where the appellant's trailer was located. J.S.'s mother, J.B., knew the appellant from high school. A close friend of hers, D.G., was a good friend of the appellant's. Through this connection, arrangements were made for J.B., D.G. and the complainants to stay overnight at the appellant's campsite so the complainants could attend the party. J.B. had not seen the appellant in years. The complainants had not previously met the appellant.
[3] Sleeping Arrangements
The complainants went to bed in the early morning hours on the day the events occurred. J.B. slept on a couch in the trailer a few steps diagonally across from where the complainants were sleeping; the appellant and his girlfriend were to sleep in a bedroom in the trailer; D.G. slept outside the trailer, in a truck.
[4] J.S.'s Account of Events
J.S. testified that she woke up around 4 a.m. feeling a pushing and rubbing sensation on her stomach. Her shirt was pulled up just below her breasts and the appellant was rubbing her stomach with his hand in a circular motion. She pulled a blanket over her and turned her Blackberry on to let him know she was awake. Within a short time, after her Blackberry light went out, J.S. saw the appellant touch E.J., first, by putting his hand down her pants on her butt area, then by putting his hand down the front of her pants.
[5] E.J.'s Account of Events
E.J. testified that she woke up to the feeling of the appellant's hand down the back of her pants. She rolled over; the appellant moved away and he then put his hand down the front of her pants. His hand stopped short of her genital area because she moved. She then grabbed her iPod and the appellant moved away.
[6] Immediate Aftermath
A short time later, E.J. woke J.B. up and told her the appellant touched "us". J.B. started screaming at the appellant and calling him names. The confrontation continued outside of the trailer. The appellant got into his vehicle and drove away. The complainants and J.B. drove away around the same time. When they got home, J.B. called the police. The complainants and J.B. went to the police station and gave statements later the same day.
[7] Trial Witnesses
In addition to the complainants, J.B., the appellant, D.G. and two other defence witnesses testified at trial.
[8] Similar Fact Evidence Application
At the close of the Crown's case, the trial judge dismissed a Crown application to admit, as similar fact evidence, evidence concerning a prior sexual assault by the appellant on his stepdaughter.
[9] Defence Evidence and Arguments
In his evidence, the appellant denied that the events described by the complainants had occurred. He and the other defence witnesses testified that both complainants had been drinking during the evening of the birthday party; he and some of the defence witnesses also claimed the complainants had smoked marijuana. Further, both the appellant and D.G. testified that over the course of the evening, J.B. had been behaving unusually and talking about protecting the complainants.
[10] Defence Closing Argument
In closing argument, in addition to relying on the appellant's denial, defence counsel at trial pointed to numerous alleged internal and external inconsistencies in the evidence of the complainants and J.B. and submitted that their evidence was not sufficiently reliable to support a conviction. He also argued that the witnesses had obviously discussed the events – shortly after they occurred, during the car ride home and once they were home – and asserted that the Crown had failed to disprove collusion or inadvertent tainting, thus rendering the evidence inadmissible across counts.
[11] Trial Judge's Reasons
In her reasons for judgment, the trial judge ruled that the trial evidence was admissible across counts. She rejected defence evidence asserting that J.B. behaved oddly that evening. Although she commented on some "idiosyncrasies" in the appellant's evidence, relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (C.A.), leave to appeal to SCC refused, [2007] S.C.C.A. No. 69, she rejected the appellant's denial of the allegations essentially because she was satisfied that the Crown's evidence proved the elements of the offences beyond a reasonable doubt.
Issues and Discussion
[12] Main Issues on Appeal
The appellant raises three main issues on appeal.
[13] First Issue: Demeanour and Reliability of Evidence
First, the appellant argues that the trial judge placed undue emphasis on the complainants' demeanour and failed to adequately scrutinize the reliability of the Crown's evidence. Concerning the latter issue, the appellant points to the multiple alleged discrepancies in the evidence of the complainants and J.B. that were raised at trial and asserts, in effect, that those discrepancies and what he claims was an evolution in the complainants' stories should have given rise to a reasonable doubt.
[14] Court's Response to First Issue
We do not accept these submissions. The trial judge gave extensive reasons in which she not only reviewed the evidence of each witness but also analyzed the defence submissions concerning alleged discrepancies and inconsistencies in the complainants' evidence and the evidence of J.B. After reviewing the alleged discrepancies and inconsistencies, the trial judge was not satisfied that any of them detracted from the complainants' core assertions about what had happened to them. In any event, we agree with the trial judge that the alleged contradictions were either not truly contradictory, or related to peripheral matters. On the entirety of the evidence, the allegations remained intact: R. v. Barua, 2014 ONCA 34 at paras. 7-8. This was the trial judge's call to make. She saw and heard the witnesses testify. She was uniquely positioned to assess both the reliability and credibility of their evidence.
[15] Evolution of Complainants' Stories
Further, on our review of the record, the appellant's assertion that there was an evolution in the complainants' stories, which demonstrated the likelihood of collusion or tainting and even fabrication, is not borne out by the record and the trial judge's findings concerning the complainants' evidence. For example, the trial judge disagreed with the defence assertion that "the tenor of E.J.'s evidence at trial was that there was one continuous touching of her body by the accused" and found that E.J.'s evidence was "not inconsistent with her police statement describing two touching events." She also found that E.J. was initially touched as she was waking up and that that fact accounted for some of the alleged inconsistencies in E.J.'s account.
[16] Inconsistencies and Collusion
Based on our review of the record, these findings were open to the trial judge. The trial judge saw and heard E.J. testify. While there was some inconsistency in E.J.'s account of the events at the trial, what the trial judge found significant was her account of how and where she was touched and not peripheral details. In any event, in our view, the fact of inconsistencies in E.J.'s evidence at the trial does not support the appellant's theory that she modified her evidence to match J.S.'s version of events. Had that been her intention, she would have given a consistent version of events at trial that matched J.S.'s version. As noted by the trial judge, inconsistencies in the complainants' evidence at trial supported the finding that their evidence was not the product of either deliberate or unintentional collusion.
[17] Demeanour Finding
Finally, on our reading of the trial judge's reasons, she did not focus unduly on demeanour but rather gave extensive and detailed reasons analyzing the evidence of the various witnesses. Concerning the complainants, her finding that they were good witnesses was much more focused on the fairness of their evidence rather than demeanour.
[18] Conclusion on First Issue
Therefore, we do not agree that the trial judge placed undue emphasis on the complainants' demeanour and failed to adequately scrutinize the reliability of the Crown's evidence.
[19] Second Issue: Evidence Across Counts and Collusion
Second, the appellant argues that the trial judge erred in permitting the evidence to apply across counts where there was evidence of collusion. In the alternative, if the trial judge was entitled to apply the evidence across counts, the trial judge erred in failing to caution herself to treat the evidence with care in assessing the weight to be afforded to it because of the possibility of collusion.
[20] Court's Response to Second Issue
We do not accept this argument. The trial judge recognized that discussions between the Crown witnesses were "natural" given the circumstances of this case. However, she found "nothing in the individualized accounts of J.S. and E.J. to suggest any tainting of their evidence had occurred as a result of their communications with one another." On our reading of her reasons, the trial judge considered the issue of collusion, both in relation to the admissibility of the evidence across counts as well as in relation to her ultimate assessment of the evidence. In the end, she found no evidence to support a finding of deliberate collusion and no evidence "to support even a motive for the girls to behave in that fashion." Noting that the defence argument at trial focused on unintentional collusion, the trial judge found nothing in their accounts to support that conclusion but rather that "the inconsistencies in their account support the finding that their evidence was not the product of either deliberate or unintentional collusion." Once again, these were the trial judge's calls to make. We see no basis on which to interfere with her conclusions. We note as well that J.S.'s eyewitness evidence that she saw the appellant assault E.J. was not similar act evidence and did not require a threshold admissibility inquiry.
[21] Third Issue: W.(D.) Test and Adequacy of Reasons
Third, the appellant argues that the trial judge misapplied the test in W.(D.) and failed to provide adequate reasons for her findings of guilt. The appellant points in particular to the following paragraphs of the trial judge's reasons:
Giving consideration to the evidence of the accused in the context of all of the evidence heard at trial, I do not believe his account, nor does it leave me with a reasonable doubt. The accused's denial of these events is difficult to accept in the face of the evidence of two witnesses who describe him hovering over and touching them.…
The evidence of the accused also cannot be reconciled with the one fact that every witnesses in this trial agrees about, which is that J.B. began yelling and screaming at the accused and accusing him of touching the girls in the early morning hours of July 20th, 2013. There can be no doubt that J.B. behaved in this fashion. On the account of the accused, this conduct by J.B. makes no sense at all. It only makes sense in the context of the evidence given by J.S., E.J. and J.B. [Emphasis added.]
[22] Appellant's Argument on Third Issue
In particular, the appellant takes issue with the trial judge's rejection of his evidence based on her acceptance of the complainants' evidence in the context of a case where he alleges there were numerous discrepancies and inconsistences in the Crown's evidence and where, unlike the situation in J.J.R.D., there was nothing to corroborate or support the complainants' allegations. The appellant also argues that the fact that J.B. yelled at the appellant after learning about the alleged incident has no bearing on whether the touching occurred and does not in any way negate the appellant's theory that the complainants fabricated their allegations.
[23] Court's Response to Third Issue
We do not accept these submissions. For the reasons we have already explained, we are satisfied that the trial judge addressed the appellant's arguments concerning discrepancies, inconsistencies and tainting. Both this court and the Supreme Court of Canada have made it clear that a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a sufficient basis for rejecting an accused's evidence: R. v. R.E.M., 2008 SCC 51, 2008 S.C.R. 3, at para. 66; J.J.R.D., at para. 53.
[24] Contextual Reading of Trial Judge's Reasons
Finally, as we read her reasons, the trial judge had rejected the possibility of fabrication or collusion before pointing to J.B.'s reaction, which she found supported the complainants' version of the events. The paragraph of the trial judge's reasons on which the appellant relies is an introductory paragraph that foreshadows her subsequent reasons.
[25] Conclusion on Third Issue
We do not give effect to this ground of appeal.
Disposition
[26] Appeal Dismissed
Based on the foregoing reasons, the appeal is dismissed.
Janet Simmons J.A.
G. Pardu J.A.
B.W. Miller J.A.
Footnotes
1The trial judge found the appellant guilty of a third count, sexual assault in relation to the complainant J.S. Although the trial judge's sentencing reasons are not before us, the sexual assault charge in relation to J.S. arose from the same events as the sexual touching charge. Both counsel acknowledge that the sexual assault charge in relation to J.S. would have been stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
