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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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). (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. (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (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. (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. (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. (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: 20210426 DOCKET: C65235
Watt, Benotto and Jamal JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
S.P. Appellant
Counsel: Margaret Bojanowska, for the appellant Kevin Rawluk, for the respondent
Heard: March 2, 2021 by video conference
On appeal from the conviction entered on March 14, 2016 and from the sentence imposed on June 30, 2016 by Justice Bernd Zabel of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant was convicted of sexual offences in relation to his daughters. The events took place approximately 40 years ago when they were between the ages of 6 and 14. He appeals the convictions on the basis that the trial judge erred in his credibility analysis and that trial counsel provided ineffective assistance. Although he appealed his sentence, he provided no written or oral submissions, and the respondent submits that the sentence appeal should be dismissed as abandoned.
Background
[2] At the time of trial, the appellant was 78 years old, his daughter D.Z. was 48, and his daughter L.R. was 50. Both complainants testified about repeated instances of sexual abuse including intercourse that occurred between 1972 and 1980.
[3] D.Z. described the sexual abuse beginning when she was 6. The family moved several times and she testified about abuse at each successive home. In 1978 when she was 12, D.Z. was visiting her aunt J.B. D.Z. asked J.B. where babies come from. D.Z. said, “My father does that to me”. J.B. confronted D.Z.’s parents. D.Z. was taken for a medical examination which revealed that she was pregnant. She then went to a New York medical clinic with her father and underwent an abortion.
[4] L.R. testified that she was sexually abused by the appellant numerous times. The first incident was New Year’s Eve, the day before her thirteenth birthday. The incidents continued throughout the year and ended when she was 14.
[5] D.Z. and L.R. both testified that the appellant sometimes arranged for them to be brought home from school early; that the acts often took place in the basement; that they were told to rub his penis; and that they were told to remove their clothes and lie on a bed while he engaged in intercourse with them. They had feelings of wetness afterwards and were instructed not to tell anyone.
[6] L.R. disclosed the abuse at a family meeting in 2011 when she and D.Z. were in their forties.
[7] The appellant testified at age 78. He denied that allegations and said that the accusations were made in response to a financial conflict that he was engaged in with his sons Z.P. and E.P. As a result of the conflict, E.P. was criminally charged in Europe. The appellant planned to fly to a country in Europe to give evidence on behalf of E.P. and against Z.P. He was arrested on these charges before his scheduled flight. He said that Z.P. convinced his sisters to make the accusations to stop him from going to Europe to testify.
[8] D.Z. and L.R. denied colluding with each other or with their brother.
[9] Z.P. denied having financial quarrels with his father and said he had no reason to stop the appellant from going to Europe and no reason to have his sisters falsely complain to the police about his father. The evidence was that the appellant could have testified from the country’s consulate in Canada.
Judgment Below
[10] The trial judge disbelieved the appellant and concluded that his evidence did not raise a reasonable doubt. He did not believe the appellant’s denial of the detailed allegations. Rather he found his evidence to be contrived, lacking in sincerity and evasive. The trial judge concluded that the appellant’s conspiracy theory was devoid of merit and contrary to the evidence.
[11] He found both complainants credible and their evidence compelling. Based on the similarities between the youth of the two complainants, the continued nature of the offences and the similar evidence in relation to the abuse, the trial judge granted the Crown’s similar fact application.
Issues Raised by the Appellant
[12] The appellant submits that the trial judge erred in the assessment of credibility and that he received ineffective assistance of counsel. He seeks to rely on fresh evidence concerning a financial motive for the allegations by the complainants.
Analysis
Credibility
[13] The appellant submits that the trial judge did not resolve material inconsistencies in the complainants’ evidence, erroneously relied on the appellant’s sweeping denial when considering the appellant’s credibility and was uneven in his scrutiny of the Crown and defence evidence.
Credibility assessment of the complainants
[14] The appellant alleges that there were inconsistencies that the trial judge failed to resolve between the complainants’ evidence and that of other witnesses. In an attempt to demonstrate this, the appellant reviewed individual statements by the complainants which he submits were inconsistent with that of other witnesses. For example, L.R. testified that she was called home from school early before instances of abuse. Her brother did not recall her coming home early from school. Likewise, D.Z. testified that she did not know she was pregnant when she told her aunt what her father did, but her aunt testified that D.Z. said she was pregnant by her father.
[15] We do not see these, and the other examples referred to by the appellant, as inconsistencies. The trial judge believed L.R.’s testimony that she was called home early. That Z.P. did not recall is neither a material fact nor an inconsistency that needed to be resolved.
[16] Similarly, D.Z.’s conversation with her aunt creates no inconsistency but rather is explainable by the context. It is understandable that her aunt understood D.Z. was saying she was pregnant when they were discussing where babies come from. In any event, this was but a peripheral matter, not a material fact.
[17] A trial judge is not required to explicitly deal with all the evidence. The reasons articulate the basis for the conviction and the examples relied on by the appellant were of limited, if any importance to his conclusion: see R. v. T.C., 2020 ONCA 469, at para. 25; R. v. A.A.G., 2020 ONCA 356, at paras. 20-21.
Credibility assessment of the appellant
[18] The appellant submits that the trial judge rejected his evidence because he denied the allegations. He points to the following statement by the trial judge:
[The appellant’s] sweeping denial of the detailed allegation of sexual assault against him is not worthy of belief; and I find it to be contrived and lacking in any ring of sincerity.
[19] The appellant submits that this is unfair since all he could say was that the events did not take place. An accused is entitled to deny the allegations.
[20] The appellant relies primarily on the term “sweeping denial” which he takes out of its context. The trial judge based his conclusion with respect to the appellant’s credibility not on the denial, but rather his disbelief of the conspiracy theory that the allegations were manufactured by the complainants on the instructions of their brother to prevent him from testifying in Europe. In the paragraphs that follow the trial judge explained:
The basis of his denial is a conspiracy theory that these serious allegations were manufactured by the complainants on the instructions of the conspiracy’s mastermind, their brother [Z.P.], to have him arrested so that he would not testify in [Europe] in civil lawsuits.
I find that this conspiracy theory is a product of the [appellant’s] desperate attempt to deflect responsibility and devoid of any merit or basis; and in fact, is contrary to the evidence presented.
[21] It was open to the trial judge to accept the evidence of the complainants and Z.P. that they did not conspire to stop him from going to Europe to testify.
[22] The appellant alleges that the trial judge misapprehended the nature of the dispute between the brothers. He argues that this was a misapprehension of a key aspect of the evidence. However, it is of no moment for the nature of the dispute was not material to his conclusion.
[23] Ultimately, the trial judge disbelieved the appellant and believed the complainants. As in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 28:
Here, the appellant was not believed. The Crown’s case was considered with the appellant’s denial in mind, and the trial judge concluded, as he was entitled to do, that his denial did not raise a reasonable doubt.
Uneven scrutiny
[24] The appellant submits that the trial judge accepted Crown witness hearsay while rejecting defence witness testimony that contained hearsay. In particular, he points to the evidence of Z.P and R.P. that was accepted and the evidence of E.P. that was rejected.
[25] There are significant differences here. Z.P. testified that his mother called him to the basement and, while extremely upset, told him about D.Z.’s abortion and that the father had raped her. R.P., another aunt of D.Z., was present at the family meeting when L.R. disclosed the abuse. R.P. was called as a reply witness in response to the allegation of recent fabrication. Her testimony was not used for a hearsay purpose. In any event, the trial judge did not rely on the testimony for proof of the abuse. For that, he relied on Z.P. and L.R.
[26] E.P.’s evidence, on the other hand, had nothing to do with the allegations. Rather, he recounted general family meetings and his financial dispute with his brother. The trial judge found this evidence irrelevant.
[27] We conclude that the appellant’s submission that the trial judge applied uneven scrutiny to the Crown and defence evidence is a “veiled invitation to reassess the trial judge’s credibility assessment”: R. v. Aird, 2013 ONCA 447, at para. 39. He has pointed to nothing in the reasons that make it clear that the trial judge applied different standards in assessing the evidence of the Crown and the defence: Aird, at para. 39.
[28] The appellant’s overall submissions on credibility veer toward the assertion of insufficient reasons. We conclude that the reasons allow for meaningful appellate review as they provide the appellant with an explanation for why the trial judge decided as he did. As the court stated in Vuradin, at para. 19:
The trial judge found the complainant’s evidence compelling, the problems in her evidence inconsequential, and the appellant’s concoction theories speculative. The reasons reveal that the trial judge accepted the complainant’s evidence where it conflicted with the appellant’s evidence. No further explanation for rejecting the appellant’s evidence was required.
Fresh evidence
[29] The appellant seeks to rely on fresh evidence to support his claim of ineffective assistance and to raise the issue of his family’s financial motive for the accusation.
[30] The appellant submits that trial counsel conducted ineffective cross-examinations and failed to raise issues that would assist him. He lists a myriad of questions that could have been asked including: questions to J.B. about the ongoing relationship with the family; failure to confront J.B. about her police statement that D.Z. told her of threats the appellant made to D.Z.; and questions to L.R. about her alleged threats to E.P.’s in-laws in Europe.
[31] There was no issue at trial that the appellant and J.B. remained in contact. The issues about J.B.’s conversation with D.Z. about the threats the appellant made and L.R.’s trip to Europe are immaterial.
[32] The general complaint about counsel was addressed in trial counsel’s affidavit:
My trial strategy was to challenge the reliability of the complainants’ evidence based on the inconsistencies and gaps in the details of their narratives and their credibility given the close timing of their complaints to police with the civil proceedings involving their families in [Europe]. I cross-examined all of the Crown witnesses as thoroughly as I could. In fact, I was met with repeated objections from the Crown and interjections from the trial judge that my cross-examinations were too wide-ranging.
[33] Indeed, the trial judge referred to his cross-examination of D.Z. as “withering”. With respect to L.R., the trial judge said, “she withstood intensive and extensive cross-examination over some 122 pages of trial transcript, as compared to 52 pages of examination-in-chief without contradiction or retraction in her testimony”.
[34] We see no miscarriage of justice arising from the allegation that trial counsel was ineffective.
[35] The proposed fresh evidence also relates to a civil suit brought against the appellant for damages for sexual abuse. There is nothing nefarious about a civil suit for damages brought after conviction. Offenders convicted of sexual assault are liable in damages to their victims: Victims’ Bill of Rights, 1995, S.O. 1995, c. 6.
[36] Finally, the proposed fresh evidence includes documents purporting to show that ownership of the matrimonial home was improperly transferred to the appellant’s ex-wife. There is also evidence of a civil suit brought by the appellant’s ex-wife against him and their bank.
[37] This proposed evidence does not meet the requirements for admission in Palmer v. The Queen, [1980] 1 S.C.R. 759: the evidence will generally not be admitted if by due diligence it could have been adduced at trial; the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; the evidence must be credible in the sense that it is reasonably capable of belief; and it must be such that if believed, it could reasonably, when taken with the other evidence at trial be expected to have affected that result.
[38] The evidence related to the appellant’s ex-wife does not bear upon a potentially decisive issue in the trial nor could it have been expected to have affected the result. The appellant’s ex-wife was not a witness at trial. The appellant’s defence at trial was that his son, Z.P., colluded with the complainants to make false claims against the appellant. The participation of his ex-wife in the alleged collusion was not a central component of his defence. In any event, the trial judge concluded that the appellant’s collusion theory did not “even stand up to the most superficial scrutiny”. The proposed fresh evidence does nothing to attack that conclusion and could not be expected to have affected the result.
[39] We have considered the fresh evidence with respect to the ineffective assistance allegation and conclude that there was no miscarriage of justice. The balance of the fresh evidence is not admitted.
Disposition
[40] The appeal as to conviction is dismissed.
[41] No submissions having been made on the sentence appeal, it is dismissed as abandoned.
“David Watt J.A.”
“M.L. Benotto J.A.”
“M. Jamal J.A.”