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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2017-05-25

Docket: C58989

Panel: MacPherson, Blair and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

I.W.S. Appellant

Counsel:

• Melanie Webb, for the appellant
• Nancy Dennison, for the respondent

Heard: May 17, 2017

On appeal from: The conviction entered on June 17, 2013 by Justice D. Shaw of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of sexual touching by Shaw J. of the Superior Court of Justice. He received a sentence of two years and six months imprisonment less 647 days credit for pre-sentence custody. The appellant appeals the conviction.

[2] The appellant stood trial for the sexual assault and sexual touching of the complainant, his daughter. The complainant was 16 years old at the time of the offences. In early March, the complainant was drinking with her friends in the basement of the home that she, her father, and her younger stepsister lived in.

[3] After her friends, other than I.F., left, the complainant continued to drink with the appellant, the appellant's cousin, and Mr. F. on the main floor of the home. The complainant became drunk and went upstairs to her bedroom to go to sleep leaving the appellant, the appellant's cousin, and Mr. F. on the main floor of the home. A few minutes afterwards, the appellant went upstairs.

[4] The complainant had passed out, fully clothed, on her bed. She awoke to someone pulling down her pants and underwear. She kept her eyes closed as she was scared. She testified that she knew it was the appellant because she could feel the bristles from his facial hair when he placed his mouth on her genitalia. The assailant then proceeded to have sexual intercourse with her.

[5] When the appellant did not return to continue the card game, his cousin went upstairs to check on him. The complainant testified that the sexual intercourse ended when the appellant's cousin called out the appellant's name just outside the bedroom door.

[6] The complainant got up, sneaked past the spare room, where she heard the appellant and the appellant's cousin talking, and fled the home with Mr. F. They went to his home. The police were contacted the next day. The complainant gave a videotaped statement describing the incident to the Ontario provincial police on March 6, 2011.

[7] The Crown case was that the appellant had committed the sexual assault. The Crown led with testimony from the complainant, Mr. F., and the appellant's cousin. Crown counsel also adduced the evidence of J.S., the complainant's cousin who testified that the appellant had by way of Facebook message stated that he had "snagged" someone on the day of the incident (which meant that he had sex with someone).

[8] The defence case was that the appellant did not commit the sexual assault. Defence counsel submitted that the complainant was intoxicated and that there was nothing to corroborate the complainant's evidence. Defence counsel also submitted that the complainant's evidence of the prickles that she felt on her genitalia during the incident meant the appellant could not have been the assailant since he shaved daily. Defence counsel also argued that the Facebook entries were not authored by the appellant.

[9] The appellant was found guilty of sexual touching and sexual assault. Pursuant to the principles in Kienapple, a conviction was entered on the charge of sexual touching and a stay was entered on the charge of sexual assault.

Grounds of Appeal

[10] The appellant advances four grounds of appeal.

First Ground: Different Standards of Scrutiny

[11] First, the appellant contends that the trial judge applied different standards of scrutiny to the evidence of the complainant and the evidence of the appellant.

[12] We do not accept this submission. The trial judge provided concrete reasons for rejecting the appellant's evidence. He also identified, and addressed, inconsistencies in the evidence, including the complainant's testimony.

Second Ground: W(D) Principles

[13] Second, the appellant submits that the trial judge failed to properly apply the W(D) principles in dealing with the evidence adduced by the Crown. In particular, the appellant submits that the trial judge did not critically analyze the complainant's evidence and merely accepted it. The main example cited by the appellant on this issue is the fact that only at the trial (and not in her statement to the police or in her testimony at the preliminary inquiry) did the complainant indicate that she knew that the appellant was the assailant because she could feel the prickles from his unshaven facial hair.

[14] Again, we reject this submission, and especially so with respect to the trial judge's treatment of the complainant's evidence. The trial judge explicitly instructed himself on W(D) and cautioned that "a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other." He then carefully reviewed the evidence, including some of the complainant's evidence that conflicted with the evidence of I.F. He moved through each of the three W(D) steps and reached a conclusion. There is nothing wrong in the trial judge's analytic process in reaching that conclusion. On the facial hair issue, the complainant was asked a direct question at trial: "how do you know it was your Dad?" and she answered it. She was not asked this question when she made her statement to the police and the issue was barely touched on at the preliminary inquiry, in cross-examination at trial, and in the defence closing submissions at trial.

Third Ground: Facebook Messages

[15] Third, the appellant asserts that the trial judge failed to analyze critically the evidence pertaining to the Facebook messages.

[16] We disagree. As the trial judge recognized, the Facebook messages were telling evidence against the appellant. The trial judge reasoned:

[125] As Mr. [S] himself acknowledged, the Facebook conversations advising that Mr. [F] had been at the house would mean that the person writing the message would have to have been at Mr. [S's] house to know that fact. This points to the messages having come from the house and again goes back to Mr. [S's] suggestions that because it was not him chatting, it had to be either Ms. [K] or Ms. [C]. Both women said they were not using Mr. [S's] Facebook account. It is unrealistic to conclude that either of these two women were pretending to be Mr. [S], hitting on [J.S.], as a self-described "hot old man" and chatting about snagging and having oral sex with a woman, and moreover, doing so while avoiding any notice of Mr. [S]. I cannot accept his explanation that they could have done so because he was careful to preserve their privacy while they were on the computer, avoiding looking at what they were doing.

[126] … [I]t would fly in the face of reason to accept the explanation of Mr. [S] that someone else was writing on the Facebook page.

[128] … I find the Facebook issue is significant in assessing Mr. [S's] credibility.

[17] In our view, this reasoning is fair and persuasive.

Fourth Ground: Absence of Medical or Forensic Evidence

[18] Fourth, the appellant argues that the trial judge failed to consider the absence of any medical or forensic evidence of a sexual assault.

[19] In our view, the evidence the trial judge accepted – especially the complainant's testimony – was sufficient to ground a conviction.

Decision

[20] The appeal is dismissed.

"J.C. MacPherson J.A."

"R.A. Blair J.A."

"Gloria Epstein J.A."