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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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); 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.
(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
Simmons, Lauwers and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
W.R.
Appellant
James Mencel, for the appellant
Lisa Fineberg, for the respondent
Heard: November 18, 2020 by video conference
On appeal from the convictions entered by Justice Nancy S. Kastner of the Ontario Court of Justice on September 28, 2017.
1WR appeals from his convictions for sexual assault and assault. The allegations involve his stepson with respect to the sexual assault conviction and his son with respect to the assault conviction. While originally also charged with sexual assault respecting his son and sexual interference with respect to both boys, the appellant was acquitted of those charges.
Background
2The appellant was charged with sexually assaulting his son CD on one occasion and his stepson AB on two occasions. At the relevant time, the appellant, CD, and AB, all lived together with GH, who was the mother of both complainants.
3According to CD, when he was six years old, his father forcibly removed a soccer shirt from his back. CD believed that, in the course of removing the shirt, the appellant fondled his genitals. His memory of this incident came back to him through flashbacks starting when he was 16. During cross-examination, CD admitted that he was unsure if the touching was incidental to the removal of the shirt. Due to this uncertainty, the trial judge acquitted the appellant of sexually assaulting CD but convicted him of simple assault.
4While the evidence on how the events involving both CD and AB came to be disclosed is somewhat confused, it seems clear that CD’s initial disclosure of what CD believed was a sexual assault, led to AB’s disclosure. All of this occurred after the appellant had left the family and moved out of the family home. CD says that he told his mother of the assault in response to her continuing to muse about reconciling with the appellant. That possibility angered CD and, in the course of trying to dissuade his mother from any such reconciliation, CD eventually told her that the appellant had sexually assaulted him. Indeed, CD initially told his mother that the appellant had “raped” him, but CD later admitted that there had not been any rape. CD’s mother told him that she did not believe his allegations.
5CD was angry that his mother did not believe him. He spoke to AB, to whom CD had been very close as they grew up. CD is unclear as to what he precisely told AB although he latterly admitted that he may have told AB that the appellant had raped him. There is also disagreement over what AB said in response. AB said that he did not tell CD about the appellant having sexually assaulted him, whereas CD says that AB did tell him. AB says that he only told his mother about the sexual assault when he told her that she should believe CD because the same thing had happened to him. To further the confusion, the mother says that CD did tell her about the appellant’s abuse of AB and that is what caused her to call AB and ask him about it. One thing is clear and that is that AB told his mother about the abuse so that she would believe what CD was telling her, as AB was very protective of CD.
6CD was twenty years old at the time that he told his mother of the abuse. AB was twenty-eight. Both of them were very angry with the appellant who had been generally abusive towards them, and their mother, during the time that he lived in the home. The appellant was also unfaithful, and he abused both alcohol and drugs. After the appellant left the family home, the mother was constantly tearful about his departure. In response, CD and AB were making every effort to remind GH how awful the appellant was to her and to them, so that she would stop crying, and to ensure she would not reconcile with the appellant.
7In terms of the allegations involving AB, he gave evidence that he was abused twice when he was 14 years old. According to his testimony, AB was wrestling with CD when the appellant joined in. AB said that the appellant grabbed his “butt” momentarily.
8With respect to the second assault, AB testified that he was asleep in his bed when he woke to grunting noises. For a fleeting moment, he realized that someone was thrusting on his back. As soon as he woke, the person jumped off and went to the doorway, where he stood for “maybe two seconds” before disappearing down the hall. While he was standing in the doorway, AB, who admitted he was in a confused state, said that he could see that the person was the appellant. AB got up and went to the hallway, to find no one there. He then went to the appellant’s door, which was 44 feet down the hallway, to find what AB described as the appellant pretending to be asleep in his bed.
9AB was confused as to what had happened, until he went to the bathroom, wiped his behind, and saw blood on the tissue. He then realized what had happened: the appellant had anally penetrated him. AB did not tell anyone about what had happened. He only came forward when he became aware that CD was making similar allegations and that their mother was not believing CD.
The finding of assault involving CD
10There was no dispute at the trial that the incident with the soccer shirt had taken place. A friend of the appellant was visiting in the home and expressed interest in the soccer shirt that CD was wearing. The appellant told CD to take the shirt off and give it to the friend. The appellant was drunk at the time and may have also been consuming drugs. When CD refused to give up his shirt, the appellant took CD to the bathroom and physically removed the shirt. In doing so, CD says that the appellant touched his genitals and his buttocks, although he ultimately admitted that the touching might have resulted from the appellant reaching in to grab the shirt, which was tucked in.
11The trial judge acquitted the appellant of sexual assault and sexual interference arising from this incident, because of the uncertainty that there was any sexual motive to the touching. However, she convicted the appellant of the lesser included offence of simple assault. In doing so, the trial judge said, at para. 275:
This assault was not to discipline C.D. or for any educative purpose. It was the act of a bully upon a vulnerable child.
12In my view, there can be no serious challenge to the trial judge’s conclusion in this regard. On the evidence, it was open to the trial judge to find that the appellant had not removed CD’s shirt for any legitimate parental objective but, rather, had done so in a drunken state as a way of showing his power over CD. The trial judge’s conclusion in this regard is owed deference by this court.
The sexual assault involving AB
13With respect to the wrestling incident, the trial judge said that she could not be sure that the appellant’s actions in grabbing AB’s buttocks had been sexual in nature, given the surrounding circumstances. She noted that AB himself was unsure of whether there was a sexual connotation to the action. Thus, she acquitted the appellant of the charges arising from that incident.
14However, on the second incident, the anal rape incident, the trial judge convicted the appellant. She did so for several reasons. One was that she found AB to be a very good witness, who she said was thoughtful and credible in his evidence. Another was that while there were inconsistencies in AB’s evidence, they did not raise a reasonable doubt in her mind. She reviewed four of those inconsistencies and found that three of them were not inconsistencies deserving of any weight. The fourth inconsistency, namely differences in what he had said about the event at different points in time, especially relating to the amount of blood that was present, was of more concern to her. However, she ultimately concluded that the inconsistencies were of the type that were to be expected, when one took into account that AB was fourteen at the time, and many years had passed since the event when AB was first called upon to speak about it.
15Ultimately, the trial judge believed AB and found the appellant guilty of sexual assault arising from the anal rape incident. She gave detailed reasons for her conclusion. Her evaluation of the evidence is, again, entitled to deference.
The motive issue
16One issue that the appellant raises that is of concern is the trial judge’s handling of the issue of motive. Both CD and AB admitted that they hated the appellant, and both wanted to see him go to jail for what he had done, not only to them, but also to their mother. Consequently, they both had reasons to either fabricate their allegations involving the appellant, or to embellish the events.
17The trial judge’s analysis of this issue is problematic. In her reasons, at para. 144, she said:
Motive is a question of fact. In this case, the Court finds that AB and CD have no discernable motive to fabricate their evidence. The Court is not in doubt.
18I begin this issue by noting that there is a difference in law between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). The former is an element that may be considered in assessing the credibility of a witness, but it is only one element. On the other hand, the latter may be a compelling reason to conclude that the witness is telling the truth. This distinction is set out in R. v. L. (L.), 2009 ONCA 413, 96 O.R. (3d) 412, where Simmons J.A. said, at para. 44:
When dealing with the issue of a complainant's motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate.
19Neither of these situations arose in this case. There was evidence of a motive to fabricate, as I have already set out. It follows from that fact that there could be no evidence of a proven absence of motive to fabricate. The problem that arises from the trial judge’s choice of words is that they could be read as saying the opposite.
20Despite the language used, I do not take the trial judge as having found that there was a proven absence of a motive to fabricate. Rather, I see her language as indicating that she did not accept that AB and CD, despite evidence of a motive to fabricate, were, in fact, fabricating their allegations for that ulterior purpose. In particular, as it relates to AB, the trial judge reviewed the reasons why she accepted AB’s evidence, all of which were within her purview as the trial judge. Motive was but one of the considerations in her analysis.
21I would add, in considering this issue, the corollary point which is that the fact that there may be a motive to fabricate does not mean that a witness is not telling the truth. As this court said in R. v. Batte, 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), 145 C.C.C. (3d) 449, at para. 121: "[t]he presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility."
22Thus, while the issue of motive to fabricate could have been better explained, I do not find that the trial judge’s handling of this issue amounts to a palpable and overriding error. Of importance is the fact that the issue of motive did not drive the trial judge’s credibility findings as they relate to either AB or CD. Equally important is the fact that, at no point, did the trial judge suggest that her views on the motive issue led her to conclude that AB and CD must be telling the truth.
The tainting issue
23The appellant also complains that the trial judge erred in her consideration of the possibility of tainting of the evidence between CD and AB. I do not accept that the trial judge made any such error.
24This case is not factually similar to the situation in R. v. J.F. (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), upon which the appellant relies. There was virtually no evidence in this case to suggest that CD and AB had colluded with each other in making their allegations and there was very little evidence that could sustain any suggestion of tainting, whether consciously or unconsciously.
25The alleged assaults were very different in nature. In addition, both CD and AB admitted that they were uncertain whether the touching was of a sexual nature, except, of course, for the anal rape. The fact that both boys were prepared, independently, to offer that acknowledgment would, by itself, discount any suggestion of tainting.
26Further, the facts demonstrated that there was very little discussion between CD and AB about the respective incidents. Indeed, the evidence shows that both of them were very reluctant to speak about these matters with anyone. Consequently, there was little opportunity for there to be any real prospect for any tainting of their evidence.
27The trial judge directly addressed this issue in her reasons. She set out her conclusion that there was no collusion or tainting of the evidence between CD and AB and gave her reasons for that conclusion, including noting that CD made his allegations before he knew anything about what had happened to AB. The trial judge’s conclusion on this issue is entitled to deference. It cannot be interfered with, absent a showing that the trial judge committed a palpable and overriding error. None has been shown in this case.
Conclusion
28The appeal is dismissed.
“I.V.B. Nordheimer J.A.” “I agree. Janet Simmons J.A.”
29I concur in the decision to dismiss the appeal. I came to this conclusion hesitantly and with reservations related to the adequacy of the reasons for decision, as I will explain.
30I accept the law, as my colleagues lay it out, on the difference between an absence of evidence of a motive to fabricate (that is, no evidence either way) and a proven absence of a motive to fabricate (that is evidence that establishes that no motive existed). For me, the case does not turn on this legal issue. My disquiet was rooted in the trial judge’s unsatisfactory treatment of the motive to lie or fabricate on the part of the complainants.
31The trial judge’s treatment of the motive to lie extends over four pages and 32 paragraphs. My colleagues cite para. 143 of the trial judge’s reasons, which I repeat for convenience:
Motive is question of fact. In this case, the court finds that AB and CD have no discernable motive to fabricate their evidence. The court is not in doubt.
32I agree with my colleagues that: “The trial judge’s analysis of this issue is problematic.” As my colleagues acknowledge:
Both CD and AB admitted that they hated the appellant, and both wanted to see him go to jail for what he had done, not only to them, but also to their mother. Consequently, they both had reasons to either fabricate their allegations involving the appellant or to embellish the events.
33There were several elements of the narrative that troubled me. First, CD admitted that he lied to his mother when he told her that the appellant had “raped” him. He told police that he had not been raped and adopted that statement on cross-examination. His shifting allegation is important because CD first disclosed the alleged sexual assault in an attempt to persuade his mother give up on reconciling with his father. He explained on cross-examination:
Q. I see. And then you were trying to convince her that really, look, your father is a bad guy, you shouldn’t be defending him, right?
A. Yeah.
Q. And you said in the context - in that context you said, look, he’s not a good guy, you shouldn’t defend him, and in fact the first thing you said was that he raped you.
A. Yeah, I - yeah. Very, like - I’d say at that time it was very unstable.
Q. Look, I’m not trying to trick you. I’m trying to get at the sequence of what was said by which people, because...
A. Yeah, that’s what I said.
34CD wanted to say something sufficiently serious to shut down his mother’s continual lament over the loss of her relationship with the appellant and her hope of reconciliation. The trial judge acknowledged but did not adequately grapple in her reasons with the possibility that CD fabricated the story in order to further drive the wedge in between his parents.
35Second, the evidence is unclear as to whether CD disclosed the allegation of rape to AB, or whether his mother did so. AB initially testified that “They [CD and GH] were arguing about her – her drinking, and [CD] basically told my mom that he was sexually abused by his biological father.” AB then said: “And then, after a while, my mom called me to reach out to my brother, to find out what’s going on with him, and when I did talk to him, he said, no one believes me, my biological father sexually abused me.” However, AB also indicated that CD had called him after the argument, saying “when my brother called me, and he said no one would believe him, I knew exactly what he was feeling.” On cross-examination, AB seemingly confirmed that CD had called him first after the argument with his mother, saying: “He called me crying, saying this is what happened to him, and no one would believe him.” CD also testified that he called AB first, shortly after telling GH. The trial judge did not resolve how it came to be that AB knew about CD’s rape allegation, and how this might play into her assessments of both credibility and reliability.
36Third, AB’s motivation seems to turn in part on his protective relationship with his younger brother CD and his desire to support CD as he had in the past. It is clear that CD’s allegation of sexual abuse provoked AB’s disclosure of anal rape. AB said so at least three times during his testimony. The trial judge failed to consider how CD’s false disclosure might have motivated a false disclosure by AB.
37I agree with the observation in Batte that: “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.” But the motive to fabricate here was palpable. The trial judge’s bald statement that “AB and CD have no discernable motive to fabricate their evidence” is simply untenable. Regrettably, the trial judge failed to grapple directly with the evidence of the brothers’ strong motivation to fabricate in her reasons.
38However, I join with my colleagues in the result based on the trial judge’s superior ability to assess credibility and reliability, and my own review of the transcripts. But there is no doubt, as my colleagues acknowledge: “the issue of motive to fabricate could have been better explained.”
Released: December 17, 2020 “JS”
“P. Lauwers J.A.”
