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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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: 2017-06-16

Docket: C57786

Panel: Feldman, Pardu and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

D.C. Appellant

Counsel: Paul Alexander, for the appellant Megan Stephens, for the respondent

Heard and released orally: June 1, 2017

On appeal from: the conviction entered on February 6, 2013 and the sentence imposed on May 2, 2013 by Justice Howard I. Chisvin of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of four counts of sexual interference and four counts of sexual assault of his daughter, from ages 11 to 14. The four counts of sexual assault were stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. He was sentenced to 18 months in addition to pre-trial custody. The appellant appeals his convictions on two grounds: 1) his s. 11(b) Charter right was infringed due to unreasonable delay in completing the trial; 2) the trial judge erred in his analysis of the credibility of the complainant by: reversing the burden of proof, misusing the finding of no motive to fabricate, and by misapprehending some of the evidence on that issue.

(1) Unreasonable Delay

[2] The trial was completed in 2013 but is now governed by the decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The trial was held in the Ontario Court of Justice so that the presumptive ceiling to verdict is 18 months. Although this case took just under 36 months to complete to verdict, on this appeal, counsel for the appellant fairly submitted that the appeal turns on the characterization of the 11-month adjournment of the trial from June 2011 to May 2012. He also fairly conceded that some of that time could be attributed to the defence but that the rest was institutional delay. The Crown's position is that the entire adjournment period is attributable to the defence. We agree with that submission.

[3] The adjournment was required because defence counsel at trial did not comply with s. 276.1 of the Criminal Code by deciding not to bring an application in writing to cross-examine the complainant on an incident of alleged prior sexual activity (in this case, another assault). The Crown sought to tender the video statement of the complainant under s. 715.1 of the Code, but with the alleged sexual assault incident edited out. Defence objected and took the position that the Crown was required to justify the editing. Although Crown counsel had given defence counsel written notice asking counsel to bring the necessary application, counsel did not do so, and the issue was addressed at the opening of trial and led to the need to adjourn.

[4] As the time set for the trial was only two days, when the adjournment was needed, the Crown sought both a date for the application as well as a separate four day trial period. That four day period could not be given by the court until the following May.

[5] We agree with Crown counsel on the appeal that the defence position at trial in June 2011 was frivolous, as a s. 276 application was required, as subsequently ruled by the trial judge. In para. 63 of Jordan, the Supreme Court identifies taking frivolous positions as conduct by the defence that is defence delay that will be subtracted from the presumptive ceiling. As a result, we find there was no s. 11(b) breach based on Jordan. We similarly reject the submission that it was an error by the trial judge in the s. 11(b) analysis he conducted under R. v. Morin, [1992] 1 S.C.R. 771, not to characterize the 11-month adjournment as institutional delay.

(2) The Credibility Findings of the Trial Judge

[6] We also reject the submission that the trial judge erred in his credibility analysis. The objection on appeal is based on the structure of the trial judge's reasons. The appellant called only one witness who did not testify as to the events of the alleged sexual assaults. Therefore the only witness on that issue was the complainant.

[7] The trial judge reviewed her evidence and he identified some inconsistencies, but found that they were not significant enough to make her unbelievable and not credible. He then found that her credibility was enhanced by the absence of a motive to fabricate. It was not in her interest to fabricate the allegations because the result of that could have been that she would no longer be able to live at her father's home in Stouffville and might have to return to live either with her mother, who was homeless, or to go into foster care.

[8] We see no error in the trial judge's approach. As Doherty J.A. stated in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.) at para. 120, absence of motive to fabricate is a factor that can be taken into account in assessing credibility. In this case there was also no error as in R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, where the accused was asked to speculate on the motive to fabricate. Nor did the trial judge misapprehend the evidence regarding the complainant's feelings about her life in Stouffville and the alternatives open to her. His findings and inferences were supported by the evidence.

[9] Finally, the approach of the trial judge did not reverse the burden of proof. He accepted the complainant's un-contradicted evidence about the sexual assaults and determined that he believed her. His reasons disclose no error.

[10] The appeal is therefore dismissed.

K. Feldman J.A.

G. Pardu J.A.

M.L. Benotto J.A.