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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-11-06

Docket: C63995

Panel: Simmons, Juriansz and Benotto JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Michael Fells Appellant

Counsel

Ingrid Grant, for the appellant

Joe Hanna, for the respondent

Hearing and Appeal

Heard: October 26, 2018

On appeal from: the conviction entered on January 31, 2014, by Justice Harvison Young of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Background

1The appellant had multiple assault convictions relating to "tricking" women into submitting to foot massages and then surreptitiously rubbing his penis on their feet. The convictions date back to April 2008 and March 2011. As a result of the 2011 convictions, he was sentenced to a term of imprisonment plus probation, which included terms that he keep the peace and be of good behaviour, that he not touch any person's feet without their consent, and that he not represent himself as either involved in, or having had, training for massage therapy.

2The appellant was released from prison on January 2, 2012. On that day he went to an apartment in Toronto where he stayed until January 12, 2012. He then went to a London residence until the morning of January 13, 2012. The trial judge found that while in both Toronto and London the appellant breached the terms of his probation by holding himself out as a massage therapy student and that in London, he unlawfully confined, assaulted, and threatened a nine year old girl, A.F., in the basement of her home and that he also sexually assaulted her by forcing her to rub her feet on his penis.

3The appellant appeals against his convictions on counts 6 to 12 of the indictment, being all but one of the London charges.

Issues on Appeal

4The appellant raises three issues on appeal.

Issue 1: Adequacy of Scrutiny of Complainant's Evidence

5First, he argues that the trial judge erred by failing to adequately scrutinize the evidence of A.F. and give reasons for her acceptance of A.F.'s evidence. In this regard, the appellant asserts that there were multiple fabrications and implausibilities in the complainant's evidence and that the trial judge either failed to explain how she resolved them or resorted to speculation to do so.

6We do not accept these submissions. In our view, the trial judge recognized the problems with the complainant's evidence but also recognized that the complainant was nine at the time of the alleged events and eleven when she testified at trial. The child gave a police statement the day after the alleged events and had also testified at the preliminary inquiry. Not surprisingly, she was not able to provide a consistent chronology of how the events unfolded. The trial judge assessed the complainant as unsophisticated and noted that one of her teachers had described her as a struggling student, but the trial judge concluded she was a child who was trying to tell the truth.

7Significantly, although the trial judge found the complainant's allegations that she was assaulted upstairs had not been established, she concluded that the complainant was unshaken in her core allegations about what happened in the basement, namely that the appellant blocked her from leaving the basement, grabbed her by the wrist and arm, forced her onto a mattress, threatened her and rubbed his penis against her feet. Notably, numerous complainants had described the appellant engaging in the latter behaviour. This provided powerful support for A.F.'s complaint of sexual assault.

8The trial judge noted there were other less reliable aspects of the complainant's testimony, however, she concluded that these frailties were explained by the passage of time, the child's focus on the frightening event that occurred, the child's nervousness and eventual fatigue while testifying, and the fact that many of the frailties were peripheral to the core event that happened in the basement. Although the trial judge did not resolve each and every inconsistency raised by the appellant, she was not required to. It was her job to weigh the evidence and assess whether the complainant's evidence was sufficiently reliable and credible to be relied upon. She explained that the child was unshaken in her central allegations and that a key aspect of those allegations was supported by powerful corroborative evidence.

Issue 2: Misuse of Similar Fact Evidence

9Second, the appellant argues that the trial judge misused the similar fact evidence, using it to corroborate evidence that it contradicted.

10We reject this argument. As noted by the trial judge, in the absence of collusion or conspiracy, findings the appellant does not challenge on appeal, it was objectively impossible that A.F. could have described the sexual conduct in which the appellant had engaged if it had not occurred. In the trial judge's view, the fact that the appellant had used trickery rather than force with the prior adult complainants did not detract from the weight of the similar fact evidence in supporting the complainant's evidence. The trial judge assessed the complainant as unshaken in her evidence of how the incident unfolded. She believed that the appellant resorted to force to get this young complainant to comply with his request. That was her call to make.

Issue 3: Misapprehension of Defence Evidence

11Third, the appellant argues that the trial judge misapprehended the defence evidence.

12This argument relates to defence evidence from two of the complainant's teachers concerning the timing of the complainant's disclosure to them. This evidence lacked sufficient force to detract from the complainant's evidence. The trial judge treated it as such.

Disposition

13Despite the able submissions of counsel, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned in accordance with the previously filed notice of abandonment.

Janet Simmons J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.