Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210928

DOCKET: C68235

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

G.B. Appellant

Counsel: Mark Halfyard, for the appellant Gregory Furmaniuk, for the respondent

Heard: September 24, 2021 by video conference

On appeal from the convictions entered on August 2, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching, all in relation to his granddaughter. The appellant was sentenced to four years’ imprisonment. He appeals his convictions.

[2] The victim was 25 years old at the time of trial. She testified about what happened to her between 2000 and 2004, when she was 7 to 11 years old.

[3] The victim’s parents were incapable of providing a stable environment for her and her siblings. Consequently, the children often stayed with the appellant and his wife. By all accounts, aside from the abuse, the victim and the appellant shared a good relationship when she was a child. Since then, the appellant has provided for her financially.

[4] But there was another side to their relationship. The victim described a number of sexual incidents that occurred in the appellant’s home and in his car. The appellant licked the victim’s vagina, rubbed his penis outside her vagina, put his penis in her mouth, and penetrated her vagina. These incidents stopped when the victim started menstruating at age 11 or 12.

[5] The victim said that she came forward with her allegations because: (a) she was aware of an incident where the appellant propositioned and then sexually assaulted her brother’s former girlfriend; and (b) she was concerned that the appellant might be abusing her younger sister. The victim went to the Children’s Aid Society, hoping it would result in her sister being removed from the appellant’s home. The matter was referred to the police.

[6] The appellant testified and denied the allegations. He said that the victim was very upset with him a week before she made the allegations because he had refused to lend her money to purchase a new car.

[7] In thorough reasons for judgment, the trial judge rejected the appellant’s evidence. She was satisfied beyond a reasonable doubt that the appellant sexually abused the victim in the manner that she described.

[8] The appellant submits that the trial judge erred in how she addressed the question of whether the victim had a motive to fabricate the allegations, thereby requiring a new trial. We disagree.

[9] The car loan motive was put in play by the appellant. The appellant and the victim agreed that the appellant told her that, if she could pay all of her own bills at her new accommodation, he would help her buy a new car the following year. Their evidence, however, diverged as to her reaction. The victim testified that the proposal made sense, was logical and that she was fine with it. The appellant said the victim was “pissed” and walked away from him.

[10] The trial judge rejected the appellant’s evidence on this issue. She said: “While the defendant is under no obligation to explain why the complainant would fabricate the allegations, the manner in which he described the complainant’s reaction to his refusal of her request for a loan appeared to me to be an effort to manufacture a motive for the complainant to lie.”

[11] The trial judge also rejected the appellant’s account of how he reacted upon hearing that the victim was pregnant when she was 18. She said it was their “biggest argument” and she moved out and went to live with her mother for a while. The appellant said he was happy to hear the news and was welcoming of the child. The trial judge rejected the appellant’s account concluding it was “an effort on his part to portray himself in a favourable light.” In combination with his evidence on the car loan, the trial judge rejected the appellant’s testimony denying the allegations.

[12] The trial judge also addressed the issue of motive when considering the victim’s evidence:

The complainant was an impressive witness. She presented as forthright, and careful not to guess about things she did not remember. She was clear and articulate. She frankly acknowledged when she could not remember or did not know the answer to a question. Apart from the allegations and a few other things, her evidence was substantially corroborated by the evidence of the defendant, which confirms that she can reliably describe her circumstances as a child. She presented in the same thoughtful and deliberate manner in cross-examination as she did in her evidence in-chief. She did not appear to hold any grudge against the defendant, and readily acknowledged all the good things he did for her. I find that it has been proven that she had no motive to lie. The evidence establishes that she knew that if she came forward her family, and in particular her children, would suffer as a result … For the most part, she kept her emotions in check when she testified, but could not hide her sadness when she talked about her loss of her relationship with her grandmother, and the support she received from her grandparents when things get rough for her. She seemed more upset by that than by what her grandfather did to her, which makes sense, given her circumstances, and the fact that she maintained a good relationship with him as a teenager and young adult. [Emphasis added.]

[13] The appellant submits that the trial judge erred in finding that there was a proven lack of motive, and by using this finding to bolster her credibility. Relatedly, the appellant submits that the trial judge erred in relying on the negative consequences to the victim as a result of making the allegations as an indication that she had no motive to fabricate.

[14] We are not troubled by the manner in which the trial judge resolved the car loan issue. The appellant introduced this issue at trial. There was nothing inappropriate in doing so, but the trial judge, in turn, was required to address the issue. On her evaluation of the evidence, she found that it was not a viable motive. It was open to the trial judge to make this finding on the record before her. In doing so, she instructed herself that the appellant had no onus to prove a motive. Her finding is entitled to deference: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 132.

[15] It would have been sufficient had the trial judge left it at that. However, her finding is broader. As noted above, the trial judge said: “She did not appear to hold any grudge against the defendant, and readily acknowledged all the good things he did for her. I find that it has been proven that she had no motive to lie.”

[16] In the former sentence, the trial judge did not find that the victim did not hold a grudge; she only held that it only appeared to look that way. This was a reasonable finding on the evidence.

[17] The trial judge’s more categorical finding – “she had no motive to lie” – requires more scrutiny. If this was a reference to the car loan, for the reasons already given, it was unobjectionable. However, given that the trial judge went on to immediately comment on the consequences of the victim coming forward, “she had no motive to lie” assumes greater significance.

[18] As this court has said in a number of recent decisions, trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant: see R. v. S.S.S., 2021 ONCA 552; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 354. However, to the extent that the trial judge may have strayed into forbidden territory, we apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant. Nor can it be said that this factor overwhelmed the trial judge’s assessment of the victim’s credibility. It did not infect the rest of her careful reasons in which she explained in great detail why she accepted the evidence of the victim and found the appellant guilty beyond a reasonable doubt.

[19] The appeal is dismissed.

“David Watt J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”