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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2018-12-18

Docket: C59607

Panel: Pepall, Paciocco and Harvison Young JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.E.S. Appellant

Counsel

For the Appellant: Sherif M. Foda and Kaleigh Davidson

For the Respondent: Jacob Sone

Hearing and Appeal

Heard: November 21, 2018

On appeal from: The conviction entered on July 15, 2013 and the sentence imposed on December 6, 2013 by Justice Rommel Masse of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Overview

[1] The appellant appeals from his convictions for assault, assault with a weapon, sexual interference, three counts of sexual assault, uttering a threat, two counts of failing to comply with a recognisance and failure to comply with probation. He also seeks leave to appeal his sentence of 10 years' incarceration less 34 months of pre-trial custody.

Conviction Appeal

[2] The charges stem from allegations made by three of the appellant's children, all of whom have cognitive deficits. The appellant was convicted of all charges with the exception of one count of assault causing bodily harm.

(i) Material Inconsistencies and Adequacy of Reasons

[3] The appellant first submits that the trial judge failed to resolve material inconsistencies in the witnesses' evidence and failed to provide adequate reasons. We would not give effect to these grounds of appeal.

[4] At its heart, this was a credibility case.

[5] The trial judge commenced his analysis by noting that credibility was of primary importance and instructed himself on R. v. W. (D.), [1991] 1 S.C.R. 742. Regarding the children's testimony, the trial judge drew guidance from the Supreme Court's decision in R. v. B. (G.), [1990] 2 S.C.R. 57, noting that although the standard of the "reasonable adult" is not necessarily appropriate, he should not lower the standard of proof when assessing the credibility of children.

[6] Having properly instructed himself, the trial judge turned to the allegations made against the appellant. He was alive to the issues relating to credibility and reliability. He specifically described shortcomings in the evidence of the children, including inconsistencies, inadmissible hearsay, exaggerations, incremental disclosure, the children's limited intellectual abilities, their difficulty providing timeframes, and contradictions in the evidence. Having alerted himself to these difficulties, he nonetheless ultimately found their evidence to be credible and reliable as it related to the serious allegations they made against their father. It was clear from the totality of the evidence that the trial judge was satisfied beyond a reasonable doubt of the appellant's guilt and it was for this reason that he convicted the appellant of all charges with the exception of that of assault causing bodily harm.

[7] On the key issues, the trial judge accepted K.S.'s evidence of the appellant's sexual assault of her and her brothers. The appellant's younger son, D.S., corroborated his sister's evidence that she and the appellant would repeatedly be shut in the bedroom behind closed doors. He also stated that the appellant grabbed and pulled his penis and that of his older brother J.S.'s penis as punishment. J.S. also stated that the appellant used to take his and D.S.'s pants down and give their penises a hard tug.

[8] All three of the children described beatings, threats by the appellant, and the factual circumstances that reflected the appellant's failure to comply with his recognizance and his breach of probation.

[9] The trial judge was not obliged to address every contradiction and inconsistency. As noted by Watt J.A. in R. v. Wadforth, 2009 ONCA 716, at paras. 65-67, the degree of detail required to explain findings of credibility will vary with the evidentiary record and trial dynamics.

[10] The trial judge rejected the evidence of the appellant as lacking in credibility and that of the other defence witnesses. He observed, correctly, that the appellant's story was in many respects inconsistent not only with the testimony of the children but also with that of his wife C.S. and the other defence witnesses. For example, his portrait of well-fed children was completely at odds with their undernourished and emaciated state when taken into foster care.

[11] The trial judge also pointed to weaknesses in the other defence witnesses' testimony. Among other things, he noted that C.S. claimed that she and the appellant never used physical force to discipline the children, though this was inconsistent with the appellant's own admissions.

[12] Although the trial judge's reasons were not perfect, they need not be. It cannot reasonably be concluded that the trial judge forgave any inconsistencies in the children's evidence due to their ages and limited intellect. Reading the record as a whole, we are satisfied that the trial judge seized the substance of the critical issues at trial and was alive to internal inconsistencies in the statements by the three children and the inconsistencies among their three recollections.

[13] Nor were the reasons inadequate. An appellate court, proceeding with deference, must ask whether the reasons considered with the evidentiary record, the submissions of counsel, and the live issues at trial reveal the basis for the verdict: Wadforth, at para. 68; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 53; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28. In our view, the trial judge's reasons for decision, which were 72 pages in length, did so. They fulfilled their functional requirement. They clearly informed the appellant of the basis for the verdict and were not so deficient as to foreclose meaningful appellate review. See also R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; and R. v. R.E.M.

(ii) Standard of Scrutiny

[14] The appellant also submits that the trial judge erred in applying a higher standard of scrutiny to the defence witnesses than that applied to the Crown evidence.

[15] This is a difficult argument to make, and we would not give effect to it.

[16] The trial judge properly instructed himself on the Crown's burden and on how to approach the evidence of children. While he did state that the appellant and his wife C.S. were "possibly the worst imaginable parents", this and other findings relating to their parenting abilities did not overtake his analysis or impair his understanding of the task before him. We are not persuaded that the appellant has established any reversible error in this regard. It is not evident that the trial judge applied different standards in assessing the Crown and defence witnesses as the appellant alleges – he acknowledged weaknesses in both defence and Crown witnesses, and addressed the credibility issues in a reasoned and even-handed fashion. We would not give effect to this ground of appeal.

Sentence Appeal

[17] The appellant also seeks leave to appeal sentence. He submits that the trial judge erred in his calculation of credit for pre-sentence custody. The appellant abandoned his submission that the trial judge erred in attenuating the relevance of Gladue principles in his sentencing decision.

[18] We agree with the appellant's submission on credit for pre-sentence custody and the Crown concedes that the appellant is entitled to credit calculated at 1.5 to 1, rather than at 1 to 1 as ordered by the trial judge. The trial judge did not have the benefit of this court's decision in R. v. R.S., 2015 ONCA 291, which was rendered after the appellant was sentenced. That case stands for the proposition that the retrospective application provisions in the Truth in Sentencing Act are of no force and effect. Accordingly, as the appellant was in custody for two years and 10 months, he is entitled to credit calculated at 1.5 to 1. This amounts to an additional 17 months credit on account of pre-sentence custody.

Disposition

[19] For these reasons we dismiss the appeal, grant leave to appeal sentence, and allow the sentence appeal to reduce the appellant's sentence by an additional 17 months on account of credit for pre-sentence custody.

"S.E. Pepall J.A."

"David M. Paciocco J.A."

"Harvison Young J.A."