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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-01-31

Docket: C61018

Panel: Doherty, Miller and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

B.S. Appellant

Counsel

Graham Jenner, for the appellant

Joe Hanna, for the respondent

Hearing and Appeal

Heard: January 25, 2019

On appeal from: the conviction entered on May 26, 2014 and the sentence imposed on December 12, 2014 by Justice B.A. Allen of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] The appellant was convicted of a series of sexual and violent offences against the complainant. The offences occurred in the context of a two-year sexual relationship. The complainant was aged 12-14 years at the time of the offences, and therefore legally incapable of consenting to the sexual relations, while the appellant was aged 27-29. The trial judge imposed sentences totalling 8 years. The complainant first met the appellant when she would come to his mother's apartment to play with his younger sister. The complainant's household was highly dysfunctional, and although she was intermittently in the care of Native Child and Family Services (NCFS), she was frequently truant and living clandestinely with the appellant.

[2] The appellant appealed against both conviction and sentence. At the conclusion of the hearing, we dismissed the conviction appeal and allowed the sentence appeal in part, with reasons to follow. These are those reasons.

Grounds of Appeal Against Conviction

[3] With respect to the appeal against conviction, the appellant argues that the trial judge erred by:

(1) relying on photographic evidence that had not been authenticated;

(2) rendering an unreasonable conviction under the meaning of s. 686(1)(a)(i) by relying on the complainant's evidence, given her inconsistent statements and admitted perjury;

(3) relying on evidence from the complainant's mother and stepfather, despite finding them to be unreliable witnesses;

(4) misapprehending the evidence that the complainant had been coached in her police statement by the NCFS and had a motive to lie.

[4] We do not agree with the submissions.

The Photographs

[5] With respect to the photographs, it was not necessary that they be authenticated by evidence from the person who took the photographs. They were capable of being authenticated by the evidence of the complainant, who was able to identify herself and the appellant in the photographs, explain the interactions depicted, and the locations at which the photographs were taken. She was also able to provide a reasoned explanation for the approximate date range she gave for the photographs, and her belief that her sister was the likely photographer. The trial judge made no error in receiving the photographs into evidence.

The Reasonableness of the Conviction

[6] The appellant focuses on the nature and number of admitted lies the complainant told the police and repeated at the preliminary inquiry. The trial judge was alive to the untruthful statements and carefully considered both the complainant's explanations for them and the circumstances surrounding the recantations. The trial judge found that the complainant's admitted lies did not negate her credibility or reliability on the central issue: she and the appellant had engaged in sexual intercourse approximately 300 times over a two-year sexual relationship, and the appellant had on various occasions physically assaulted her.

[7] The appellant argued that the trial judge erred by finding that the complainant's lies actually made her more credible than she would have been without the lies. We do not agree with this reading of the trial judge's reasons. The trial judge expressed concern about the effect of the untruthful statements on the complainant's credibility. In stating that the "recantations have a redeeming feature" and cast "a somewhat more positive light on her general credibility", she was merely stating that the complainant's acknowledgment and recantation of the lies had some ameliorative effect. It is not open to us to interfere with the trial judge's credibility assessment.

The Parents' Evidence

[8] With respect to the complainant's parents' evidence as to the sexual relationship between the appellant and the complainant, it was open to the trial judge to rely on the parents' evidence where it was supported by other credible evidence, notwithstanding her finding that the parents' substance abuse made their evidence generally unreliable. The evidence of the parents that the trial judge was willing to accept was consistent with the photographic evidence and the evidence she accepted from other sources, including the complainant, the NCFS, and the police. The trial judge viewed the parents' evidence as providing some additional support for evidence from sources that she found more reliable. She did not err in doing so.

The Evidence of Motive to Lie

[9] This argument rests on the trial judge's statement at paragraph 58 of her reasons that "(t)here is no substantiation" for the defence theory that the complainant fabricated the claims she made to the police as part of a deal with the NCFS to secure her independence from them. There is, as the appellant argues, some evidence that could have supported that allegation. However, we do not read the trial judge's reasons as denying this. Rather, she concluded that in light of the totality of the evidence that she accepted, she could not draw the inference urged by the defence. The trial judge made no error in so finding.

Sentence Appeal

[10] The appellant advances multiple arguments on the sentence appeal.

[11] The trial judge found that the appellant was in a position of trust or authority over the complainant, which is an aggravating factor under s. 718.2(a)(iii) of the Criminal Code. The appellant disputes this, arguing that he was simply a neighbour trying to help the complainant through a difficult home life, and ended up romantically involved with her. We do not agree. As the trial judge found, the appellant made himself a confidante for a troubled and vulnerable 12 year old girl. He "provided places of refuge and protection from neglectful parents who were adrift in their own world of substance abuse." She stopped going to school and to her family home in order to spend all her time with him. He facilitated her flight from the NCFS and kept her in hiding. She was wholly dependent upon him for companionship, food, and shelter. He made himself, in the trial judge's words, "her world". The trial judge made no error in characterizing the relationship as one of trust, coming within s. 718.2(a)(iii).

[12] We do not agree that the trial judge inappropriately considered the complainant's age as an aggravating factor under s. 718.2(a)(ii.1) with respect to the sexual interference conviction, which necessarily involves the abuse of a person under the age of 16. The complainant's age was relevant to assessing her degree of vulnerability, and the age difference was relevant to assessing the appellant's degree of culpability.

[13] The appellant argues that the trial judge erred in considering the appellant's conviction for arson as an aggravating factor, given that the conviction post-dated the conduct for which the appellant was sentenced. The Crown concedes, properly, that this was an error, but argues that it did not have an impact on the appellant's sentence. We agree. Although it was an error to consider post-offence conduct, we are not persuaded that it had any impact on sentencing. The fact of the arson conviction was listed as part of an extensive criminal record, which was itself only one of ten aggravating factors considered by the trial judge. Additionally, it was not an error for the trial judge to consider the arson conviction when assessing his rehabilitative potential.

[14] The appellant also argues that the trial judge erred in relying on facts that were not in evidence, specifically, facts related to the appellant's subsequent conviction for sexual offences. Again, it was not an error for the trial judge, in assessing the appellant's prospects for rehabilitation, to consider his conduct when he was on bail.

[15] The appellant argues, and we agree, that the trial judge erred in failing to comply with s. 726 of the Criminal Code and ask the appellant if he had anything to say. We are not satisfied, however, that this error had any impact on sentence.

[16] Most significantly, the appellant argues that the sentence imposed is unfit, falling outside the appropriate range. We do not agree. This ground of appeal is largely exhausted by our rejection of the argument that the trial judge erred in finding the appellant to have been in a position of trust. In any event, given the complainant's vulnerability, the appellant's domination of her, the disparity in ages, the duration of the abuse, and the instances of violence (including choking the complainant and punching her in the face), we do not agree that the sentence is unfit.

[17] The Crown concedes, and we agree, that the trial judge erred in failing to give the appellant credit for 105 days of pre-trial custody, which when calculated on a 1.5:1 basis, should have resulted in a credit of 158 days.

Disposition

[18] The appeal as to conviction is dismissed. Leave to appeal sentence is allowed, and the sentence appeal is allowed only with respect to credit for pre-trial custody. The sentence appeal is dismissed in all other respects.

"Doherty J.A."

"B.W. Miller J.A."

"G.T. Trotter J.A."