R. v. G.D., 2021 ONCA 414

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20210614 DOCKET: C67436

Pardu, Brown and Paciocco JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

G.D. Appellant

Counsel: G.D., acting in person Ian Smith, duty counsel Phillipe Cowle, for the respondent

Heard: April 9, 2021 by video conference

On appeal from the conviction entered by Justice Alexander D. Kurke of the Superior Court of Justice on February 5, 2019, and from the sentence imposed on July 26, 2019, with reasons reported at 2019 ONSC 40, 370 C.C.C. (3d) 221.

Reasons for Decision

Overview

1The appellant was convicted of sexual assault of two young teenagers and was sentenced to a prison term totaling 8.5 years. He appeals from conviction and seeks leave to appeal from sentence.

Background

2Each of the complainants described a course of sexual assaults upon them.

3The complainant P.T., then thirteen years old, asked the appellant if he could live in his apartment. The appellant agreed and did not demand rent from the complainant. The appellant admittedly supplied P.T. with alcohol and drugs.

4According to the complainant, the appellant climbed into P.T.’s bed behind P.T. and held and squeezed P.T.’s penis through his underwear, and humped his crotch into P.T.’s buttocks.

5The second incident involved similar touching and circumstances. While P.T. had slept, the appellant had positioned himself on the floor beside the bed, low enough down the side of the bed so that his hand could reach P.T.’s penis.

6P.T. left the apartment after this last incident.

7According to the complainant W.V., the incidents took place in the V. family home, in the City of Greater Sudbury, from 1999-2001. At that time, W.V.’s parents had to make frequent trips to Toronto to deal with a sibling who was gravely ill, and the appellant was permitted to stay at the family home. The appellant was entrusted to help W.V. who was, at that time, fifteen years old. Various people may have been in the home when the incidents occurred.

8On each of the many incidents in question, before sleeping, W.V. had been consuming drugs and alcohol provided to him by the appellant or with the encouragement of the appellant.

9The first occasion of sexual touching of W.V. by the appellant took place on the rec room floor, where W.V. had either passed out or fallen asleep from the consumption of drugs and alcohol. W.V. awoke to find a hand down the front of his pants.

10On numerous occasions, the appellant took advantage of W.V.’s unconsciousness or sleep to masturbate W.V., including to the point of ejaculation. W.V. would awaken to find that this conduct by the appellant was occurring. On two occasions, W.V. was asleep or unconscious in his room when the appellant penetrated W.V.’s anus with his penis. The appellant guided W.V. into accessible positions.

11The assaults of W.V. ended when the appellant left the home, and no longer had access to W.V.

12The defence at trial was that the incidents never happened, and that the complainants’ evidence was unreliable and not credible.

13The appellant testified, but the trial judge rejected his evidence as evasive, self-serving, and contrary to common sense and reason. The trial judge applied R. v. W.(D.), [1991] 1 S.C.R. 742, and convicted the appellant on both counts.

14The appellant, acting in person, pointed the court to various aspects of the evidence. These do not establish any reversible error on the part of the trial judge.

Conviction Appeal

15Duty counsel, on behalf of the appellant, argues that the trial judge made an error of law that requires this court to set aside the convictions and order a new trial.

16In relation to W.V., duty counsel points to the trial judge’s credibility assessment. First, at para. 147, the trial judge noted “WV could have exaggerated or minimized what he recollected, but did not do so” before giving several examples. Second, at para. 153, the trial judge noted that there were “undeniable frailties relating to the reliability of the evidence of WV”, but that candour and lack of exaggeration “speak highly of his credibility”.

17Counsel argues that this kind of reasoning reflects an error in principle, relying on R. v. Alisaleh, 2020 ONCA 597, paras. 13-17. In Alisaleh, this court observed, at para. 16, that:

[I]t is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true. [Emphasis added.]

18Counsel submits that the same problem affects the trial judge’s reasoning in respect of the first complainant, P.T. At para. 133, the trial judge points to P.T.’s criminal record, but nevertheless finds him a compelling witness, noting the lack of exaggeration. The trial judge returns to this theme at para. 135. Counsel submits that the trial judge erred in using lack of exaggeration as a “makeweight in favour of credibility”, contrary to this court’s instruction in R. v. Kiss, 2018 ONCA 184, at para. 53.

19The Crown submits that, while it would have been better if the trial judge had avoided any reference to a lack of exaggeration, this court noted in Kiss that it is not an error to note the absence of something that could diminish credibility. The crucial question is whether the trial judge reasoned that because the allegation was not worse, it was likely to be true: see Kiss, para. 52; Alisaleh, at para. 16.

20It is clear from the trial judge’s reasons that he engaged in a detailed and thorough review of the evidence of both complainants. Reading the reasons as a whole, we would interpret the impugned passages as references to an absence of a matter that would diminish W.V. or P.T.’s credibility. We agree with the Crown that when the trial judge indicated that the complainant W.V. did not exaggerate, he meant that the complainant was ready to acknowledge the limits of his memory.

21The appeals from conviction are accordingly dismissed.

Sentence Appeal

22As to sentence, there is no basis to intervene. The appellant was around forty years old when he befriended the vulnerable young complainants. He fed them drugs and alcohol to facilitate the commission of the offences. There was an element of breach of trust in relation to both.

23The assaults have had serious negative consequences for the well-being of both complainants. The seven-years-and-six-months imprisonment for the sexual assault upon W.V. and the one-year consecutive sentence for the sexual assault of P.T. were within the range established by the jurisprudence and there is no basis to intervene. Leave to appeal sentence is granted but the appeals from sentence are dismissed.