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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 Information

Court of Appeal for Ontario

Date: November 27, 2017

Docket: C60671

Panel: Laskin, Feldman and Blair JJ.A.

Between:

Her Majesty the Queen Respondent

and

T.D.A. Appellant

Counsel:

• M. Halfyard and B. Vanderbeek, for the appellant
• Michael Fawcett, for the respondent

Heard: October 27, 2017

On appeal from: The conviction entered on April 9, 2015 by Justice Barry G.A. MacDougall of the Superior Court of Justice, sitting without a jury.

By the Court

Background

[1] The appellant seeks to set aside his convictions for sexual interference, invitation to sexual touching and sexual assault.

[2] At the time of the offences, the complainant was approximately nine years of age. At the time of trial she was 13. She is the appellant's step-granddaughter. She frequently slept over at the appellant's home and alleged that on three separate occasions between January, 2011 and August, 2012, he touched her inappropriately by placing his hand up her shirt (on two occasions) and by placing her hand over his crotch area (on one occasion). The first incident occurred when the appellant was sleeping beside her on a pullout couch in the basement; the second, when she was sitting on his lap; and the third, when she and the appellant were watching a movie in an upstairs bedroom. There was no touching of the complainant's genitals.

[3] At trial, the Crown was permitted to call the evidence of two "similar fact" witnesses – both adult nieces of the appellant at the time of trial – who testified that when they were about the same age as the complainant, and would sleep over at the appellant's home, the appellant touched them inappropriately in similar ways.

[4] The appellant raises four grounds of appeal. He submits that the trial judge erred (i) in admitting the similar fact evidence; (ii) in failing to deal fairly with material inconsistencies in the complainant's evidence and by relying too heavily on the complainant's demeanour; and (iii) by using his rejection of the appellant's and his wife's testimony to draw impermissible inferences of guilt. Lastly, the appellant argues that the verdict is unsafe and unreasonable.

[5] We would not give effect to these grounds of appeal.

Discussion

(1) The Similar Fact Evidence

[6] The appellant's principal submission concerning the admission of the similar fact evidence turns on the issue of collusion. He submits that the trial judge erred in finding that the Crown had met its burden of showing, on a balance of probabilities, that the evidence of the similar fact witnesses was not tainted by collusion.

[7] On this issue, the Crown conceded the evidence was sufficient to establish "an air of reality" respecting potential collusion, and the defence conceded that there was no direct evidence of collusion and no evidence of deliberate concoction by either witness. While counsel sought to blunt the defence concessions in oral argument, on our view of the record the trial judge was entitled to proceed on the basis he did.

[8] In conducting his admissibility analysis, the trial judge considered and applied the relevant legal principles relating to collusion in the similar fact context, as canvassed in R. v. Dorsey, 2012 ONCA 185, 289 O.A.C. 118, at para. 26; R. v. C.B., 167 O.A.C. 264 (Ont. C.A.) at paras. 36, 39 and 40; and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 44. In particular, he noted the following passage from this Court's decision in C.B., at para. 40:

Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events.

[9] The trial judge was alive to the appellant's argument that the facts lending an air of reality to collusion could – and, in this case, did – rise to the level of inadvertent or unconscious collusion or collaboration. He dealt with this argument directly, in particular by addressing the four primary points relied on by the defence as the basis for collusion, namely:

(i) that the two witnesses had been told by the complainant's step-mother (the appellant's daughter) what had allegedly happened to the complainant before they went to the police;

(ii) both witnesses were at the preliminary hearing and heard the complainant's testimony;

(iii) both witnesses were told by a private investigator, hired by the complainant's father in connection with the complaint and a civil suit against the appellant, that if they had any evidence to disclose it would help the complainant, and that both gave very similar and very generic statements to the investigator; and

(iv) that the complainant's step-mother had told them that if they disclosed what had happened to them, it would help the complainant.

[10] The appellant submits that, in spite of these concerns, the trial judge subjected them to little or no analysis. We disagree. The trial judge conducted a very thorough analysis of the evidence, including that of the two similar fact witnesses. He found that they gave their evidence in a straightforward manner, with few inconsistencies, and that their evidence was reliable and capable of belief. Referring to Shearing, at para. 44, he recognized there was a possibility that by "the sharing of the stories" with one another the witnesses may have intentionally or accidentally allowed themselves to modify their stories to make their testimony seem more similar. He concluded, however, that the evidence did not go beyond mere possibility or opportunity in this case. He was satisfied, for purposes of the threshold admissibility analysis, that the Crown had shown on a balance of probabilities that the proffered evidence was not tainted by collusion.

[11] The appellant effectively urges us to re-assess the evidence and arrive at a different conclusion. We see no basis for doing so. In our view, the trial judge properly exercised his important gatekeeper role. He examined the evidence and found the witnesses credible and reliable. He applied the relevant legal principles. His decision regarding the collusion issue is entitled to deference on appeal.

[12] In other respects, the trial judge very carefully reviewed and applied the relevant principles for the admission of similar fact evidence, generally, as set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 104-112. He was satisfied that the probative value of the proffered evidence outweighed its potential prejudice and that the witnesses had not colluded together in respect of their testimony. He found that the relevant criteria had been met, and ruled the similar fact evidence admissible.

[13] We would not interfere with his decision to admit the similar fact evidence.

(2) Demeanour and the Resolution of Material Inconsistencies

[14] The appellant complains that the trial judge did not deal properly with the many inconsistencies in the complainant's testimony and, in addition, that he relied too heavily on her demeanour in making the assessment he did.

[15] We are not persuaded by this submission.

[16] The trial judge did not deal with all the alleged inconsistencies in the complainant's testimony, but only with those he considered could be material, individually or cumulatively. The appellant concedes that he was entitled to take this approach.

[17] In a detailed analysis, the trial judge listed and addressed a total of 14 alleged inconsistencies – three respecting the "pull-out couch incident", six respecting the "sitting on the lap incident", and five respecting the "upstairs watching the movie incident". He carefully reviewed the circumstances surrounding each inconsistency, including the complainant's testimony and other relevant evidence, finding them to be of varying degrees of significance.

[18] He then turned to an assessment of the credibility and reliability of the complainant's testimony. Counsel argued that the trial judge placed too much reliance on his assessment of the complainant's demeanour and that he compounded this error by considering the inconsistencies in the complainant's testimony only in the context of the reliability analysis and not as part of the credibility analysis as well.

[19] We agree the trial judge did place some weight on the way in which the complainant acted and to how she responded to questions. For example, she readily acknowledged when she had made mistakes or had made inconsistent comments. Several of her statements struck the trial judge "as [being] particularly honest and frank". The trial judge was entitled to take these factors into consideration, particularly given the age of the complainant (approximately nine years of age at the time of the incidents; thirteen when she testified).

[20] We do not agree that he placed too much emphasis on demeanour, however. He accepted that credibility could not be determined solely on the basis of demeanour. He set out several other objective reasons for accepting her evidence, and did not base his findings solely on her demeanour. Contrary to the appellant's submission, he did deal with the issue of prior inconsistent statements in his specific analysis of "credibility"; in any event, we do not think anything turns on the argument that he left "inconsistencies" to the "reliability" portion of his analysis in these circumstances.

[21] The trial judge believed the complainant, notwithstanding the inconsistencies he identified, and gave cogent reasons for doing so. The weight to be afforded to her evidence and its various imperfections was for him to decide. We see no error in this regard.

(3) The Trial Judge Did Not Draw an Impermissible Inference of Guilt

[22] The trial judge noted that his disbelief of the appellant's evidence – and that of his wife – as to the sleeping arrangements on the couch raised suspicions as to whether there were other explanations for the appellant's sleeping between the complainant and her sister. However, we are not satisfied that the trial judge went further, and used his disbelief of the accused's testimony as proof that the accused fabricated a story in an effort to avoid culpability, and, therefore, to jump to a finding of guilt.

[23] We reject this ground of appeal.

(4) The Verdict Was Not Unsafe or Unreasonable

[24] It follows from the foregoing that there was ample evidence upon which a trier of fact, properly instructed, could have found the appellant guilty on the totality of the evidence. This ground of appeal must also fail.

Disposition

[25] For the foregoing reasons, the appeal is dismissed.

Released: November 27, 2017

"John Laskin J.A."

"K. Feldman J.A."

"R.A. Blair J.A."

Footnote

[1] At sentencing, the sexual assault count was conditionally stayed in accordance with the rule against multiple convictions. Although the appellant sought leave to appeal sentence in his Notice of Appeal, the sentence appeal was not pursued.