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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.
(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.
Court of Appeal for Ontario
Date: 2024-05-23 Docket: C70772
Fairburn A.C.J.O., Favreau and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
B.W. Appellant
Counsel: Lance Beechener and Simon Kim, for the appellant Kevin Pitt, for the respondent
Heard: October 31, 2023
On appeal from the conviction entered by Justice Jocelyn Speyer of the Superior Court of Justice dated February 14, 2022, with reasons reported at 2022 ONSC 592, and from the sentence imposed dated May 10, 2022 with reasons reported at 2022 ONSC 2399.
A. Introduction
1The appellant was found guilty of two counts of sexual assault [1], two counts of sexual interference, one count of invitation to sexual touching, one count of exposure for a sexual purpose, and one count of making sexually explicit material available to a child for the purpose of facilitating the offence of sexual interference. The appellant was sentenced to a global custodial sentence of six years. His sentence was also comprised of a number of ancillary orders, including a lifetime order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), and a ten-year internet ban under s. 161(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46.
2The complainants, S. and L., were the appellant’s two stepdaughters.
3The trial judge found that S. and L. were credible witnesses, and that some of their evidence was corroborated by the evidence of their mother, M., and the appellant. The trial judge did not believe the appellant’s evidence.
4The appellant submits that the trial judge erred by: (1) failing to adequately consider that the complainants’ evidence was tainted by collusion; (2) improperly discounting significant discrepancies between the complainants’ evidence; and (3) misapprehending aspects of the appellant’s evidence.
5With respect to the sentence appeal, the appellant claims that the trial judge erred by imposing a lifetime SOIRA order and a complete ten-year ban on the use of the internet.
6I would dismiss the conviction appeal. I would grant leave to appeal the sentence and allow the sentence appeal by substituting a twenty-year SOIRA order for the lifetime order and removing the ten-year ban on the appellant’s use of the internet.
B. Background
(1) The relationship between the appellant and the complainants
7The appellant and the complainants’ mother, M., met in 2016. In November 2016, they started living together. M. had three children, S. and L., both girls, and O., a boy. The children lived with M. and the appellant at the relevant time. The three children regarded the appellant as their stepfather.
8Initially, the appellant and M. lived in one house from November 2016 until mid-March 2019, after which they moved to another house. In October 2018, M. began a new job which required her to work until 7:00 p.m. most weekday evenings. Once M.’s new job started, the appellant regularly picked the girls up from school and the younger boy from daycare. The appellant would typically make the children dinner and put them to bed before M. returned from work.
9On May 7, 2019, the girls disclosed to M. that the appellant had touched them in a sexual manner. At the time, L. was 9 years old and in grade 4, and S. was 11 years old and in grade 6. M. immediately confronted the appellant, after which he left the house and the relationship ended.
10The girls gave video statements to the police a few days later.
11At trial, the girls’ evidence was provided through their video statements and viva voce evidence. M. also testified. The appellant testified in his own defence.
(2) L.’s evidence
12L.’s evidence is that, on May 7, 2019, the appellant came into her bedroom when she was getting ready for bed. The appellant picked her up and put her face down on the bed, with her legs hanging over the side of the bed. At the time, she was only wearing underwear which was her usual sleep attire. The appellant tickled and massaged her. She asked him to stop, but he did not. The appellant gave her a “wedgie” and placed himself on top of her. He then moved his penis up and down against her buttocks.
13At some point while the appellant was in L.’s bedroom, L. screamed for help. S., whose bedroom was nearby, came into L.’s bedroom, at which time the appellant hit L. with a pillow. The appellant said that L. was alright, and S. could leave. S. then left L.’s bedroom.
14After the appellant left L.’s bedroom, S. came back into the bedroom and asked what was happening. L. told S. about what the appellant had done to her.
15L. testified that the appellant did similar things to her about once a week when her mother was not home. She said that it started in the old house.
16In her police interviews, L. also referred to the incidents starting when she played “truth or dare” with the appellant. She said that she did not remember the questions the appellant asked during the game, but that it was not anything sexual and that the appellant had told her not to tell her mother. L. did not recall playing “truth or dare” with the appellant by the time she testified at trial.
(3) S.’s evidence
17S.’s evidence was that the appellant had sexually abused her many times while her mother was not at home. She described several different acts, including that:
- The appellant pulled down her pants and underwear, and rubbed his penis against her buttocks while she was in the “downward dog position”.
- The appellant grabbed her legs and pulled them over her shoulders, and he then touched and licked the area of her vagina.
- The appellant inserted his fingers in S.’s vagina.
- The appellant exposed his penis to S.
- The appellant placed S.’s hand on his penis, and made her hand move up and down until he ejaculated on her hand or on her bed.
- The appellant showed S. two different videos in which an adult man engaged in sexual activity with a girl. In one of the videos, the girl put the man’s penis in her mouth. The appellant explained to S. that this was something stepfathers did with their stepdaughters.
- The appellant asked S. to put his penis in her mouth, after putting a condom on his penis. S. refused to do so.
18In her police interview, S. stated that the appellant had sexually abused her at least fifty times. At trial she said that it was more like twenty to thirty times, and that these incidents had occurred in the new house while her mother was away, approximately once per week.
19S. said that these incidents started with the appellant playing “truth or dare” with her. She said that playing “truth or dare” with him made her feel weird, but she did not remember any specific sexual acts during the game.
20S. testified that, on May 7, 2019, she heard L. calling for help from her bedroom. She was unsure what was going on and went into her sister’s bedroom. She saw the appellant holding a pillow. The appellant indicated that L. was fine. S. then left. S. later returned to L.’s bedroom when the appellant was no longer there. S. asked L. what was going on. L. disclosed the sexual abuse to S., after which S. spoke to their mother. S.’s evidence was that she told her mother because she did not want the same thing to happen to L. that was happening to her.
(4) M's evidence
21M. testified that she was not aware of the allegations until the evening of May 7, 2019. Her evidence was primarily about the domestic arrangements prior to May 7, 2019, and the events on May 7, 2019, when the girls disclosed the sexual abuse and she confronted the appellant.
(5) The appellant’s evidence
22The appellant denied the sexual abuse. He described the household and his relationship with the complainants prior to May 7, 2019.
23He also provided his version of what occurred in L.’s bedroom on May 7, 2019. He testified that he was tickling and hitting L. with a pillow to try to get her to go to bed when S. entered the bedroom. He said that he often played with the kids in this way.
24The appellant also gave his version of what occurred when M. confronted him about the complainants’ disclosures.
(6) The trial judge’s decision
25In her decision, the trial judge noted that the Crown had brought an application for cross-count use of evidence, but that it was not necessary for her to rule on the application. The trial judge further stated that she did not use S.’s evidence to enhance L.’s credibility.
26The trial judge reviewed all the evidence and found that the complainants’ evidence was credible and reliable. In reaching this conclusion, she explained that, in their video statements given two days after May 7, 2019, the girls both provided detailed and spontaneous accounts of what the appellant did to them. She also found that some of their evidence was confirmed by the evidence of M. and the appellant, which demonstrated that the complainants had the ability to recount events accurately and that they were reliable. The trial judge acknowledged several internal inconsistencies in the complainants’ evidence. However, she was satisfied that this was due in part to their young ages and that these inconsistencies were not significant enough to detract from her overall assessment that their evidence was credible and reliable.
27The trial judge found that the appellant was not credible because his evidence at trial was inconsistent in significant respects with his police statement, M.’s evidence and common sense. She gave several examples in support of this finding, some of which I address further below.
28The trial judge ultimately found the appellant guilty on all charges because she did not find him credible and because she accepted “without reservation” the evidence of L. and S.
29The trial judge imposed a total six-year custodial sentence. She also made a number of ancillary orders, including a lifetime SOIRA order and an order prohibiting the appellant from accessing the internet for ten years.
C. Conviction Appeal
30The appellant’s conviction appeal focuses on the trial judge’s credibility assessment. He raises the following three issues:
a. The trial judge failed to properly assess the potential for collusion or tainting of evidence between the complainants; b. The trial judge failed to resolve material inconsistencies in S.’s evidence; and c. The trial judge misapprehended important aspects of the appellant’s evidence.
31At the outset, it is helpful to emphasize that this court owes significant deference to the trial judge’s credibility findings because she had the advantage of seeing and hearing the witnesses’ evidence: R. v. Tynes, 2022 ONCA 866, at para. 57; R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. An appellate court should not interfere with findings of credibility unless they cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Absent a palpable and overriding error, an appellate court must not interfere in a trial judge’s credibility findings: R. v. G.F., 2021 SCC 20, 71 S.C.R. (7th) 1, at para. 81; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; Tynes, at para. 57.
32In this case, the trial judge specifically instructed herself on the correct legal principles in assessing the credibility of the complainants and the appellant. She correctly articulated the principles in R. v. W.D., [1991] 1 S.C.R. 742. She also noted that, given that the complainants were children, their evidence should be assessed by reference to their mental development, understanding and ability to communicate, but that this did not relieve the Crown from the burden of proving the case beyond a reasonable doubt.
(1) The trial judge did not err in assessing the risk of collusion or inadvertent tainting
33The appellant argues that the trial judge failed to properly consider the risk that the complainants’ evidence was based on collusion or inadvertent tainting. He says that, given the circumstances under which the complainants disclosed the allegations against him to their mother, there was a real risk of collusion or tainting.
34The appellant points to several opportunities for and indicia of collusion or inadvertent tainting, including: 1) S. and L. initially spoke to each other in L.’s bedroom before S. told M. about the abuse L. reported to her; 2) L. acknowledged having heard S. talking to M., including mentioning the game of “truth or dare”; and 3) S. and L. had two days to speak to each other before they gave their statements to the police. In addition, the appellant points to the complainants’ similar references to the game of “truth or dare” as the start of the abuse as specific evidence of collusion or tainting.
35I would reject this argument. It is evident from the trial judge’s reasons that she considered the potential for collusion or inadvertent tainting. She had specific regard to the complainants’ reference to the game of “truth or dare”, but was satisfied that the complainants’ evidence was not tainted, either consciously or unconsciously:
Counsel also submits that the fact that S., L., and M. all spoke of the “truth or dare” game at some point is suggestive of collusion between them, whether intentional or not. I disagree. S. clearly connected that game to a time when her relationship with her stepfather got weird. She said that to the police. M. said that S. told her that the defendant was playing truth or dare and that he massaged and tickled L and L felt his wiener. If S.’s account is true, then “truth or dare” had a special meaning to her – it was related to the defendant’s behaviour towards her. It is not surprising that S. referred to truth or dare when she spoke to her mother.
L. was unable at trial to explain her earlier reference to “truth or dare”. In her police statement, she said that the defendant had done what he did to her about once a week, and that it all started when they played truth or dare. In her statement, she said that there was nothing sexual about it. She learned that S. played “truth or dare” with the defendant the night that he left, because she heard S. tell her mother about it, but she testified that she did not tell the police officer about truth or dare based on what she heard S. say. It is my view that L.’s evidence about how or why she referred to truth or dare is not reliable. At the time of trial, she simply did not know why she made that reference. I accept that at trial she had no memory of what truth or dare involved when she and defendant were together. While L.’s statement and evidence about truth or dare is unreliable, I do not consider it to tell against her reliability and credibility generally. It is simply something that a child has forgotten. [Emphasis added.]
36The circumstances of this case are unlike those in this court’s decision in R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, which is a decision the appellant relies on. In C.G., the court found that, while the trial judge in that case had considered the possibility of advertent collusion between the complainants, he failed to consider the possibility of “inadvertent collusion”. In other words, he failed to consider that conversations between witnesses about what had occurred in that case could have inadvertently influenced their evidence. This court found that this was an error and that it was compounded by the manner in which the trial judge assessed the appellant’s evidence.
37In contrast, in this case, while the trial judge did not explicitly address every aspect of the appellant’s argument regarding potential collusion or inadvertent tainting, her reasons, read as a whole, demonstrate that she considered this possibility and rejected it. Notably, as referred to above, she explicitly rejected that both complainants’ references to “truth or dare” was evidence of intentional or non-intentional collusion.
38In addition, in assessing this ground of appeal, it is relevant that the trial judge provided a comprehensive explanation for why she accepted the complainants’ evidence. While she was explicitly alert to the risk of collusion or inadvertent tainting, her explanation for accepting L. and S.’s evidence demonstrate why she was satisfied that their evidence was independently credible and reliable.
39With respect to L.’s evidence, the trial judge pointed out that, in her police interview, L.’s description of what occurred was spontaneous and detailed, including her physical demonstrations of what the appellant did to her. With respect to S., the trial judge noted that her evidence was also spontaneous and detailed, and that she demonstrated, without any prompting, how the appellant moved her hand up and down his penis.
40The trial judge further stated that she found the complainants’ evidence credible and reliable because, other than the allegations themselves, their evidence was largely confirmed by the evidence of M. and the appellant. She found that this demonstrated that “L. and S. have the ability to recall and recount their circumstances accurately”, and that they were therefore reliable witnesses despite their young ages.
41It is also noteworthy that, while the complainants’ descriptions of what the appellant did to them had some similarities, including their references to the game of “truth or dare”, there were numerous differences. For example, L.’s evidence was focused on the details of what happened on May 7, 2019, whereas S. provided extensive evidence about other incidents that involved acts that were very different than those described by L.
42Ultimately, while there may have been a risk of collusion or inadvertent tainting, the trial judge turned her mind to this issue and determined that this had not occurred here. She was not required to address every argument made by the appellant on the risk of collusion and inadvertent tainting, and her assessment of the complainants’ evidence in this respect is entitled to deference. More importantly, while she demonstrated that she was alert to the risk of collusion or inadvertent tainting, she provided comprehensive reasons for her finding that the complainants’ evidence was credible and reliable. These findings are entitled to deference, and I would therefore reject this ground of appeal.
(2) The trial judge did not fail to resolve material inconsistencies in the complainants’ evidence
43The appellant submits that the trial judge failed to resolve two material discrepancies in S.’s evidence: 1) her evidence regarding the number of sexual incidents, and 2) whether the appellant penetrated her vagina and anus with his penis. I would reject these arguments.
(i) Number of incidents
44In her video statement, S. said the sexual abuse happened at least fifty times, whereas in her evidence at trial she said it occurred between twenty and thirty times. The trial judge acknowledged this discrepancy and addressed it as follows:
In her video statement, officer McConnell asked S. “so this is a tough question, but some kids can answer and some kids can’t, but do you have any idea how many times you think this has happened”, and S. answered “if I would’ve counted probably like fifty or so times”. When she was cross-examined at trial, she revised this estimate to 20 to 30 times. She readily agreed that if they had been in the new house only six weeks, that her estimate to officer McConnell would be an exaggeration. She was also clear in cross-examination that the incidents only happened at the new house. I am not troubled by this inconsistency. Children are notoriously poor at estimating the number of times things happen. S. told officer McConnell that it happened about once a week. Her answer to officer McConnell made it clear that she did not count how often the incidents occurred, and that her response to him was a guess. I accept that her guess was unreliable, but in my view it does not detract from her credibility. [Emphasis added.]
45The appellant says that the difference between fifty times and thirty to twenty times is significant. He also submits that even twenty to thirty times would be an exaggeration given that S. said the abuse started at the new house and occurred approximately once per week, yet the family had only moved to the new house in March 2019. The appellant argues that it was improper for the trial judge, without any expert evidence, to reconcile these discrepancies by saying that children are notoriously poor at estimating the number of times things happen.
46I see no error in the trial judge’s approach to S.’s evidence on the number of incidents. Her approach is consistent with direction from the Supreme Court of Canada on how trial judges should assess the evidence of young children. In R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55, the court stated that courts should take a “common sense” approach when dealing with the evidence of young children. The court further said that “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”: B.(G.), at p. 55.
47This is the precise approach adopted by the trial judge in this case. Early in her decision, the trial judge properly instructed herself on how to approach the evidence of child witnesses. She stated that “[c]hildren are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate”. At the same time, she stated that “[w]hile the evidence of children must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown”. The trial judge went on to correctly apply this approach to S.’s evidence. No expert evidence was required for the trial judge to consider that children have a hard time estimating the number of times things happen. This was a matter of common sense.
48On that basis, the trial judge properly found that S.’s evidence about the number of occurrences was unreliable due to her young age and inability to provide an accurate estimate. Nevertheless, she appropriately concluded that this did not detract from her assessment that S.’s account of what the appellant did to her was both credible and reliable. As reviewed above, she accepted this aspect of S.’s testimony because it was spontaneous, detailed and included a physical demonstration, and because many aspects of her evidence were confirmed by the evidence of M. and the appellant.
49I am satisfied that the trial judge committed no error in finding that S.’s evidence regarding the number of occurrences was unreliable while nevertheless accepting her evidence of what occurred as reliable and credible.
(ii) Whether penetration occurred
50The appellant claims that the trial judge failed to address a contradiction in S.’s evidence regarding whether the appellant had penetrated her vagina and anus with his penis.
51In raising this issue, the appellant points to a series of questions S. was asked during her police interview and at trial. Initially, in the police interview, S. was asked what part of the appellant’s body touched her “private areas”, and she responded that it was either his finger or his tongue. She was then asked directly whether he ever touched her private areas with his penis and she said “no”. Later in the interview, the police officer circled back to the issue and asked S. whether she thought the appellant’s penis had ever gone “inside of [her] bum or vagina”. She responded “yeah” and gave consistent answers to two other similar questions. At trial, S. testified that the appellant did not penetrate her with his penis and, in cross-examination, she said that she assumed her answers to the second set of questions on this issue in her police statement were wrong because she did not remember the appellant’s penis “ever being near [her] vagina”.
52The appellant argues that the trial judge failed to address this significant discrepancy in S.’s evidence. Indeed, in her reasons, the trial judge did not directly address this contradiction. However, she discussed S.’s evidence on this issue when addressing a concern raised about whether the police officer who interviewed S. asked leading questions:
S. was asked by Officer McConnell whether she thought that the defendant’s penis went inside her bum or vagina or both, when he was rubbing his penis on her. She responded “I think both”. The officer asked her how that felt to her. She said: “I feel like we’re technically making out”…“kinda”…I don’t like it, like to me that’s just disgusting”. In this exchange, S. reveals an age-appropriate understanding of what is happening to her. The genuine quality of her answer does not strike me as influenced by the question.
53In making his argument on this issue, the appellant ignores that, as reviewed above, when initially asked open ended questions during her police interview, S. stated that the appellant had not penetrated her “private areas” with his penis. It was only in response to later questions that she answered affirmatively when asked whether that appellant’s penis had “gone inside” both her vagina and anus. As noted by the trial judge, when S. was asked how that felt to her, she quickly pivoted and gave an answer that suggested an immature understanding of what the appellant did to her. Further, at trial, at a time when she was a few years older, she readily said that she assumed she was wrong when she gave the answers at issue because she did not remember the appellant’s penis ever being near her vagina.
54In my view, the trial judge’s failure to directly address S.’s seemingly contradictory evidence about penetration was not a reversible error. Trial judges are not required to address all aspects of the evidence or all arguments advanced by an accused: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-18, 32, and 64; R. v. A.B., 2023 ONCA 254, at para. 16. The trial judge did not rely on the evidence of penetration in her findings of guilt. As reviewed above, she carefully reviewed S.’s evidence, including her evidence of many of the different sexual acts the appellant performed on her, and explained why she found this evidence credible. Further, as held by this court in R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 42, “[f]laws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult”.
(3) The trial judge did not misapprehend the evidence
55The appellant submits that the trial judge misapprehended the evidence at trial in three respects: 1) his explanation for hitting L. with a pillow on May 7, 2019; 2) his explanation for S.’s knowledge of condoms; and 3) his criminal record.
56Before addressing these specific issues, it is helpful to remember that the test for appellate intervention on the basis of a misapprehension of evidence is stringent. This court will only intervene if: a) the misapprehension goes to the substance of the evidence and not just a peripheral detail; b) the misapprehension is material to the trial judge’s reasoning; and c) striking the misapprehension leaves the verdict on unsteady ground: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Gill, 2019 ONCA 902, at para. 10.
(i) The pillow hitting incident
57As reviewed above, on May 7, 2019, when L. screamed for help, S. went into her sister’s bedroom but the appellant said that L. was fine and S. could leave. In his evidence, the appellant explained that he tickled and hit L. with a pillow because she was procrastinating about going to bed. The trial judge rejected this evidence as nonsensical:
The defendant testified that he tickled L. and hit her with a pillow because she was procrastinating about going to bed. This makes no sense. M. testified that to her knowledge the kids were not tickled before bed, and denied that she and the defendant tickled them before bed. As she reasonably explained, they were trying to get the kids to bed, not wind them up. I accept M.’s evidence about this. It makes sense. The defendant’s evidence about why he was tickling L. and hitting her with a pillow strikes me as an incredible attempt to explain why L. was calling for help. [Emphasis added.]
58The appellant argues that the trial judge misapprehended the evidence that he was hitting L. with a pillow to get her to go to bed. He submits that L. and S. corroborated his evidence, and that the trial judge therefore improperly rejected his evidence.
59In my view, there was no misapprehension of evidence on this issue. What the trial judge found nonsensical was the appellant’s explanation for hitting L. with the pillow. While L. confirmed that the appellant was hitting her with a pillow, she did not confirm that he was hitting her to get her to go to bed.
60There was some confusion in L.’s evidence regarding the timing of when the appellant started hitting her with a pillow. In her interview with the police, she initially said that it started after the sexual activity, when she called for help and her sister came into the bedroom. The appellant started hitting her with a pillow at that point to make it look like this is why she was calling for help. However, later in L.’s interview, she suggested it may have happened before the sexual activity. At trial, she had trouble remembering whether it was before or after. In her reasons, the trial judge acknowledged this discrepancy, but indicated that it was not significant.
61In any event, L. never said that the appellant was hitting her with the pillow as a way to get her to go to bed because she was procrastinating. As far as S.’s evidence is concerned, she too did not confirm that the appellant was hitting L. with the pillow as a way to get her to go to bed. The complainants’ evidence is not confirmation or corroboration. Moreover, as noted by the trial judge, M.’s evidence was that the appellant did not tickle the children before going to bed, which she found tended to undermine the appellant’s evidence.
62It was open to the trial judge to find the appellant’s explanation for hitting L. with a pillow was not credible, and there was certainly no misapprehension of evidence on this issue.
(ii) The condoms
63The appellant claims that the trial judge misapprehended his evidence regarding the complainants’ knowledge of condoms.
64As mentioned above, S.’s evidence was that, on one occasion, the appellant put on a condom and asked her to perform oral sex on him. The appellant’s evidence was that, at that time, S. would have known what a condom was because he and M. had previously caught S. and L. playing with condoms as water balloons, and had explained what they were and that they were used to prevent pregnancy and disease. The appellant’s position at trial was that S. therefore knew what a condom was at the time of her police statement and could have fabricated her evidence.
65In her decision, the trial judge rejected the appellant’s evidence that he and M. had explained what condoms were and their use to the girls. She gave several explanations for rejecting this evidence. First, she found that it conflicted with M.’s evidence that they did not tell the girls about condoms and their use. Second, she found that it was “not credible that he would tell young children that condoms were used to prevent disease”. Third, she identified a conflict between the appellant’s police statement and his evidence at trial. In his police statement, the appellant referred to the complainants playing with baby bottle liners, not condoms, as water balloons, which he said they referred to as “penis covers”. In contrast, at trial, he said they played with condoms as water balloons. This led in part to the trial judge’s conclusion that the “defendant’s evidence about the girls playing with condoms was … untruthful”.
66The appellant argues that the trial judge erred in finding that there was a discrepancy between his police statement and his evidence at trial. He says that, in his police statement, he had also mentioned catching the girls playing with condoms as water balloons. He also says that his evidence on this point was confirmed by S.’s own evidence.
67While I agree that the trial judge’s conclusion that the appellant’s evidence that the girls played with condoms was “untruthful” was inconsistent with other evidence, this does not detract from the trial judge’s key findings on this issue.
68In assessing the complainants’ credibility, the trial judge found that S.’s evidence about the appellant wearing a condom when he asked her to perform oral sex was confirmed by other evidence. Specifically, M. and the appellant gave evidence that the appellant had genital herpes and that they kept condoms in a tin in their bedroom for sexual relations. The trial judge pointed out that this was consistent with S.’s evidence that the condom came from a tin in the appellant’s bedroom. The trial judge also found that the appellant’s condition was not a fact known to S., but that it served to confirm her evidence that the appellant used a condom when he asked her to perform oral sex on him.
69Moreover, the trial judge’s rejection of the appellant’s evidence that he and M. had previously explained what condoms were used for was well grounded in the evidence. M.’s evidence was that, while she and the appellant caught the girls playing with condoms as water balloons and told them to stop, they did not explain what condoms were used for. In addition, at the time S. gave her police statement, she described the condom on the appellant’s penis, but she did not have a word for it. The interviewer had to supply the word “condom”. Further, at trial, S. acknowledged that she and her sister had previously played with condoms as water balloons, but she did not know what they were at the time and only understood what they were in retrospect at the time of her evidence.
70Accordingly, there was no evidence confirming the appellant’s version regarding S.’s knowledge of condoms and it was open to the trial judge to reject his evidence. Any misapprehension of the difference between the appellant’s statement to the police and his evidence at trial was not significant and does not affect the strength of her verdict.
(iii) The criminal record
71The appellant did not address this alleged error in oral argument and, instead, relied on his factum in support of his position on this issue.
72In her description of the appellant’s evidence, the trial judge stated that:
He has a criminal record that is dated and does not contain any offences of dishonesty. The only significance of his criminal record is that it contradicts his evidence that he is not a violent person. That evidence is not accurate and reveals a tendency to over-statement.
73The appellant has two dated convictions for assault simpliciter on his criminal record. He submits that the trial judge improperly found that these convictions contradict his statement at trial that he was “generally not a violent person”. Moreover, he was not asked any questions about these convictions and therefore had no opportunity to address this issue.
74I agree with the respondent that the trial judge did not use this evidence for an improper purpose. She relied on it as part of her credibility analysis and not for the purpose of any propensity reasoning. More importantly, the trial judge’s reliance on the appellant’s criminal record was a minor aspect of her credibility assessment and does not detract from the overall strength of analysis.
D. Sentence Appeal
75The appellant appeals two aspects of his sentence: 1) the lifetime SOIRA order; and 2) the s. 161(1)(d) order precluding him from accessing the internet for ten years.
(1) The lifetime SOIRA order
76The trial judge imposed a lifetime SOIRA order. Relying on s. 24(1) of the Charter, the appellant asks that the lifetime SOIRA order be substituted for a twenty-year order.
77At the time of the conviction, the relevant provisions of the Criminal Code required the imposition of a lifetime order in circumstances where an offender was convicted of more than one designated offence. In R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, the Supreme Court found that the provisions at issue were unconstitutional and declared them of no force and effect. The court gave Parliament one year to introduce revised provisions. In the interim, the court did not suspend the operation of the SOIRA regime, but instead stated that offenders impacted by a SOIRA order made under the old regime can seek a remedy under s. 24(1) of the Charter: Ndhlovu, at para 140. Since then, Parliament has introduced a new regime governing the registration of sexual offenders.
78In the circumstances, including the fact that the Crown does not object, we are satisfied that it is appropriate in this case to grant the relief sought by the appellant under s. 24(1) of the Charter. We therefore substitute the lifetime SOIRA order for a twenty-year order.
(2) The internet ban
79The appellant appeals the order made under s. 161(1)(d) of the Criminal Code prohibiting him from using the internet for ten years. In her sentencing reasons, the trial judge referred to a number of prohibitions based on s. 161(1) of the Criminal Code, but none of them related to the use of the internet. It appears that this prohibition was erroneously included as part of the Prohibition Order.
80The Crown agrees.
81I would therefore remove the s. 161(1)(d) prohibition from the Prohibition Order.
E. Disposition
82I would dismiss the conviction appeal.
83I would grant leave to appeal the sentence, and allow the sentence appeal by substituting a twenty year SOIRA order for the lifetime order and removing the ten year ban on the appellant’s use of the internet.
Released: May 23, 2024 “J.M.F.” “L. Favreau J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Copeland J.A.”
1The sexual assault convictions were stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
