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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220315 DOCKET: C68438 & C68017
Strathy C.J.O., Harvison Young and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
J.B. Appellant
Counsel: Craig Zeeh, for the appellant Manasvin Goswami, for the respondent
Heard: January 21, 2022 by video conference
On appeal from the conviction entered and the sentence imposed on January 28, 2020 by Justice Robert J. Nightingale of the Superior Court of Justice.
Harvison Young J.A.:
Overview
[1] The appellant J.B. was convicted of sexual assault against his young stepdaughter, J.D. He appeals both his conviction and the sentence imposed.
[2] J.D. testified that these incidents occurred over a period of years, beginning when she was about 9 and continuing until she was about 16. Over that time, she lived with her biological father and stepmother, and visited the appellant and her mother during weekends and for longer periods in the summer. The alleged assaults took place during these visits. They were comprised of incidents of fellatio, forced masturbation and sexual contact in the complainant’s bed.
Facts
[3] At trial, the Crown alleged that the appellant forced J.D. to perform fellatio on him on one occasion, that he forced J.D. to masturbate him on two occasions, and that he lay in bed against the complainant’s back while naked on one occasion.
[4] The Crown called J.D. as its only witness. The appellant elected to testify on his own behalf, and to call his brother and his former spouse, J.D.’s mother as defence witnesses.
[5] J.D. gave evidence that the forced fellatio took place when she was approximately 11-years-old. She testified that she was lying on her bedroom floor when the appellant entered the room and tried to insert his penis into her mouth. She stated that this made her very uncomfortable and she turned her head to fight it as best as she could.
[6] The forced masturbation is alleged to have occurred when J.D. was approximately 14-years-old. J.D. stated that she was watching a movie while her mother was upstairs in her bedroom. The appellant was wearing only his bathrobe, masturbating. At one point, he took J.D.’s hand and put it on his penis. In cross-examination, she stated that this happened on only one occasion.
[7] Finally, J.D. gave evidence that the appellant’s last assault occurred the day before she went to a theme park with her step-sister and the appellant. She was laying down facing the wall when the appellant came into the room fully naked. He allegedly lay down and pressed himself against her back. J.D. recalled being upset and eventually asked the appellant to leave. She was approximately 16-years-old.
[8] J.D. did not disclose these allegations until she went to the police some seven years after the last assault.
[9] After a three day trial, the trial judge convicted the appellant of sexual assault contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46. He sentenced the appellant to 33 months imprisonment, and prohibition orders under ss. 161(1)(a), (b) and (c) of the Code.
Issues
[10] The appellant raises three grounds of appeal against his conviction.
(i) The trial judge erred by relying on the absence of exaggeration to bolster J.D.’s evidence.
(ii) The trial judge erred by relying on prior consistent statements to corroborate J.D.’s evidence.
(iii) The trial judge erred by relying on neutral aspects of the appellant’s evidence and the evidence of J.D.’s mother to confirm J.D.’s allegations.
[11] In addition, the appellant argues that the order imposed under s. 161(1)(a) of the Criminal Code is overbroad.
[12] I address each of these issues in turn.
Analysis
(1) The Use of the Complainant’s Absence of Exaggeration
[13] First, the appellant submits that the trial judge improperly used the absence of exaggeration to bolster J.D.’s evidence, committing precisely the same error that this court recently found in R. v. Alisaleh, 2020 ONCA 597. The error, he submits, is highlighted in the following passages of the trial judge’s reasons:
At no time did [J.D.] appear to embellish or exaggerate the sexual abuse incidents against her by J.B. that could reflect a carelessness for the truth when testifying under oath. In fact, she made it clear when first describing the incidents to her stepmother and the police that there was no rape by him or touching by him on her breasts or vagina.
[14] In that same passage, the trial judge also stated that there was no evidence of any motive for J.D. to lie, finding:
I have not considered that there was no such motive, nor do I conclude from that that J.D. must be telling the truth or that it enhances my assessment of her credibility . [Emphasis added; citations omitted.]
[15] I do not agree that the trial judge used the absence of exaggeration to bolster the complainant’s evidence. Read in the context of the reasons as a whole, the trial judge was merely noting that factors tending to diminish the complainant’s credibility were absent. As Fairburn A.C.J.O. stated, at para. 16 of Alisaleh:
This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility.
[16] It is wrong, however, to use the absence of embellishment as a “makeweight in favour of credibility”: R. v. Kiss, 2018 ONCA 184, at para. 53.
[17] In this case, the trial judge was not using the absence of exaggeration in J.D.’s evidence or her lack of motive to lie as a “makeweight in favour of credibility”. It was merely one of the explanations he gave for why he did not find the complainant to be incredible: Kiss, at para. 53. He was not reasoning that, because the allegations could have been worse, they were more likely to be true.
[18] Thus, Alisaleh is clearly distinguishable. At para. 14 of that case, and unlike the present case, Fairburn A.C.J.O. found that “the lack of embellishment was specifically noted by the trial judge as an ‘important’ factor used to ‘enhance’ the complainant’s credibility.” Accordingly, I would not give effect to this ground of appeal.
[19] The appellant also points to the inclusion of the impugned paragraphs under the heading entitled “Assessment of the Evidence” to support his argument that the trial judge used lack of embellishment as a makeweight in favour of the complainant’s credibility. This is not borne out by a review of the reasons. The paragraphs relied on by the appellant comprise only 3 out of a total of 38 paragraphs under that heading. In the course of these paragraphs, the trial judge assessed all the trial evidence and did so methodically and exhaustively while referring to and applying the Supreme Court of Canada’s framework from R. W.(D), [1991] 1 S.C.R. 742.
[20] Nor would I accept the argument that the trial judge erred in failing to instruct himself as to the uses of absence of exaggeration. It is evident from the trial judge’s reasons that he was alive to the limitations on the use of such evidence and an express self-instruction was unnecessary.
(2) The Use of Prior Consistent Statements
[21] In response to questions from defence counsel, J.D. explained that, when she disclosed the sexual assaults, she told her stepmother that there had been no rape and told the police that she did not recall any inappropriate touching of her personal areas. The appellant argues that the trial judge improperly used these prior statements to corroborate J.D.’s evidence.
[22] The governing principles are not in dispute. Triers of fact cannot assume that “because a witness has made the same statement in the past, he or she is more likely to be telling the truth”: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7.
[23] Consistency, on its own, “is a quality just as agreeable to lies as to the truth”: R. v. L. (D.O.) (1991), 65 C.C.C. (3d) 465 (Man C.A.), at p. 484, rev’d , [1993] 4 S.C.R. 419. Prior consistent statements, moreover, lack the independence required of corroborative evidence: Stirling, at para. 7; David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 C.C.L.R. 181 at pp. 185-86.
[24] In this case, the trial judge did not expressly identify why he mentioned J.D.’s disclosure of the sexual assaults. Therefore, the question is whether his reasons, by implication, show that he used those prior statements for an improper purpose.
[25] The relevant passage in the reasons for conviction does not support such a finding. There, the trial judge stated:
At no time did [J.D.] appear to embellish or exaggerate the sexual abuse incidents against her by [the appellant] that could reflect a carelessness for the truth when testifying under oath. In fact, she made it clear when first describing the incidents to her stepmother and the police that there was no rape by him or touching by him on her breasts or vagina . [Emphasis added]
[26] Read in context, the underlined sentence, like the first, addresses the absence of a problem in J.D.’s evidence, such as exaggeration or embellishment, that could reflect a carelessness for the truth.
[27] Having noted that this problem was not present in J.D.’s trial testimony, the trial judge made a passing observation that no such problem was apparent in J.D.’s pre-trial disclosure either. This was “simply recital of a fact” and “a far cry from attempted self-corroboration by evidence of previous consistent statements”: R. v. Choy, 2013 ABCA 114, 89 Alta. L.R. (5th) 401, at para. 42.
[28] The record supports a benign reading of the trial judge’s reasons. The Crown did not ask the trial judge to use J.D.’s prior statements for a corroborative purpose. It stands to reason that the trial judge did not do so of his own accord. The trial judge, moreover, is presumed to know the law. Even if his reference to J.D.’s disclosure is ambiguous, that ambiguity should not be resolved in favour of a legally impermissible use of the prior statements: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-04.
[29] In any event, the trial judge’s reference to J.D.’s disclosure, in the context of discussing the absence of embellishment, caused the appellant no prejudice. Had the trial judge restricted himself to J.D.’s in-trial testimony, he would have reached precisely the same conclusion: J.D. did not embellish or exaggerate the alleged sexual assaults.
[30] This conclusion was clear from the trial record and remains uncontested. Beyond a solitary appearance in the discussion of embellishment, there is no indication that the prior statements played any substantive role in the trial judge’s analysis. Simply put, the trial judge did not reason that, because J.D. had disclosed the sexual allegations in the past, the allegations were more likely to be true. The material portion of the disclosure highlighted by the trial judge focused not on what the appellant allegedly did, but what the appellant did not do.
[31] This is a very different situation from the authorities on which the appellant relies. In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 40, the trial judge “was clearly of the view that the complainant’s consistency in recounting the allegations made her story more credible”, and “relied heavily” on this fact in convicting the appellant. The trial judge in R. v. A.S., 2020 ONCA 229, engaged in similarly “flawed reasoning” in relying on a complainant’s prior statements about bruising she sustained during an alleged sexual assault: at para. 52.
[32] Nothing of the sort happened here. If the trial judge erred, he did so by factoring an irrelevant detail into his conclusion that J.D. did not embellish or exaggerate her evidence. Since he would have made this finding in any event, and because that finding played no material role in his decision to convict, I would dismiss this ground of appeal: R. v. Polanco, 2018 ONCA 444, at para. 32, leave to appeal refused, [2018] S.C.C.A. No. 271; R. v. G.B., 2021 ONCA 675, at para. 18; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 35, 40.
(3) The Trial Judge Did Not Rely on Neutral Factors to Confirm J.D.’s Evidence
[33] According to the appellant, the trial judge improperly used neutral aspects of his evidence and the evidence of J.D.’s mother to confirm J.D.’s account. In particular, the appellant objects to the following four items of “confirmatory” evidence:
- the mother’s evidence on whether the appellant had opportunities to be alone with J.D.;
- the mother’s evidence on whether J.D. would have been able to hide from the appellant under her bed and in her closet;
- the mother’s and the appellant’s evidence about the layout of the house; and
- the mother’s and the appellant’s evidence about whether the appellant wore bathrobes.
[34] Evidence is confirmatory if it tends to support the truth of the complainant’s account or tends to dispose of alternate hypotheses raised by the defence. Evidence can be confirmatory “even if it does not ‘directly confirm the key allegations of sexual assault’ or ‘directly implicate the accused’”: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal to S.C.C. requested, 40020, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271 at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568. The degree to which confirmatory evidence advances the Crown’s case is a matter of weight for the trial judge to resolve: Demedeiros, at para. 10.
[35] Based on these principles, this ground of appeal must be dismissed. The four pieces of evidence to which the appellant objects were properly identified as confirmatory.
(a) Opportunities for the Appellant to be Alone with J.D.
[36] The appellant argues that the mother’s evidence of his opportunity to commit the assaults was not confirmatory because it was equally consistent with his own account of events. This submission fails for two independent reasons.
[37] First, the argument is wrong in law. Evidence can be confirmatory even if the accused accepts it as true. Demedeiros, the principal authority on which the appellant relies, makes clear at para. 10, that “[t]o be given confirmatory weight, evidence need only be more consistent with the complainant’s version of events than with another version”.
[38] The accused cannot negate the effect of confirmatory evidence which tends to support the Crown’s overall case by admitting the underlying facts. A trial judge is entitled to consider all relevant and material collateral facts, whether disputed or admitted, in determining whether the complainant’s evidence is reliable: Demedeiros, at para. 13; R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 16.
[39] Second, the argument is incorrect on the facts. The mother’s evidence was not “equally consistent” with the appellant’s evidence on the issue of his opportunities to be alone with J.D. The appellant’s evidence on this point was considerably more categorical than the mother’s. He went so far as to say that he “never did have any interactions” with J.D. even when he was home during the weekends.
[40] The appellant also claimed that he could not have been alone with J.D. in the living room because her mother “was always inside” that room, “never le[ft]”, and “never went to sleep when I went to bed, she would come up after I went to bed”.
[41] The mother’s evidence was quite different. She testified that the appellant could have been alone with J.D. while, for example, she took the other children outside, or when she was laying down because she felt ill. She was also clear that she would not always go to bed before the appellant did:
Q. Now, sometimes when he would come home, I’d take it, you might already be in bed, you wouldn’t necessarily wait up every single time that he went out with his buddies.
A. No.
Q. So, it’s possible that he might’ve, he could’ve sat down on the couch, and watched TV for all you know, when he got home.
A. Yeah.
[42] In short, on the appellant’s evidence, his opportunities to be alone with J.D., including in the living room, were virtually non-existent. The mother painted a less stark picture. Her evidence supported J.D.’s account by confirming that the appellant had opportunities to be alone with J.D. and by rebutting the appellant’s minimization of those opportunities. The evidence was properly identified as confirmatory.
(b) Hiding under the Bed and in the Closet
[43] J.D. testified that she used to hide from the appellant under her bed and in her closet. The appellant testified that J.D. could not have hidden under the bed because there were drawers that “occup[ied] the full space” under the bunkbed and had been installed “just as soon” as the bunkbed was purchased. Further, J.D. could not hide in the closet because it was taken up by a dresser that “had been there all the time”.
[44] J.D. rejected the suggestion that the were drawers under her bed or a dresser in her closet in her cross-examination. Defence counsel argued that J.D. had not been truthful, undermining her “credibility and reliability”.
[45] The mother’s evidence supported J.D.’s account and rebutted the appellant’s conflicting evidence. On her evidence, there was nothing under the bed except some boxes with clothes and toys and, temporarily, a suitcase. As for the closet, a dresser had not been placed there until J.D. was 14 or 15. The mother’s evidence therefore confirmed J.D.’s evidence that there were no drawers under her bed, while also rebutting a defence challenge to J.D.’s credibility and reliability.
[46] Accordingly, the mother’s evidence on this issue was confirmatory of J.D.’s account.
(c) The Layout of the House
[47] As the appellant notes, the evidence of the mother and the appellant was generally consistent with J.D.’s description of the layout of the house. The appellant argues that the layout evidence is not confirmatory because it supports only “consistent mundane details” in J.D.’s evidence.
[48] However, the layout evidence supported J.D.’s truthfulness and rebutted hypotheses put forward by the defence to attack J.D.’s credibility and reliability. Among these were the theories that J.D. was “guessing” at various points in her evidence, that her recollection had been “warped over time” with flashbacks and nightmares, and that her allegations may have been influenced by PTSD. Against this backdrop, it was “entirely proper” for the trial judge to note that J.D.’s recall of the house where the sexual assaults occurred – a house she had stopped visiting five to six years earlier – was accurate and anchored in reality: R. v. Slatter, 2019 ONCA 807, 382 C.C.C. (3d) 245, at para. 154, per Pepall J.A., (dissenting) aff’d, 2020 SCC 36.
[49] These details, moreover, had some significance to the Crown’s case. They explained, for example, why the appellant was able to expose himself and masturbate in the living room without being heard or seen by those in upstairs bedrooms. Granted, these details were not decisive, but the trial judge “did not overstate [their] importance”: Primmer, at para. 42. Whether those details were “mundane”, as the appellant asserts, is an objection that goes only to weight, not to legal error: Demedeiros, at para. 12.
(d) The Bathrobes
[50] For the same reason, evidence confirming that the appellant wore bathrobes, as J.D. described, was appropriately classified as confirmatory. It tended to support J.D.’s truthfulness – and tended to rebut the alternate hypotheses advanced by the defence – by confirming J.D.’s recall of an important contextual detail at trial.
[51] Further, on the appellant’s version of events, there was no explanation of why or when J.D. would have seen that item of clothing. The appellant agreed that he wore bathrobes “on occasion”, primarily in the morning, and testified that he used to leave the house before J.D. was out of bed. Confirmation that J.D. was correct about the appellant wearing bathrobes suggested that she had more interactions with the appellant than his evidence accounted for.
(4) The Sentence Appeal under 161(1)(a) and (c)
[52] When offenders are convicted of certain sexual offences against a person under the age of 16 years, s. 161(1) of the Criminal Code, R.S.C. 1985, c. C-46, “gives sentencing judges the discretion to prohibit them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate”: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 3. Section 161(1) prohibitions are meant to protect children from sexual offenders. Orders under s. 161(1) are discretionary and entitled to “substantial deference” on appeal: R. v. Durigon, 2021 ONCA 775, at para. 5.
[53] The appellant challenges one term in the s. 161(1) order imposed in this case: the prohibition under s. 161(1)(a) on his attendance at certain locations where persons under the age of 16 might reasonably be expected to be present, unless accompanied by a responsible adult. The appellant, pointing to his first-time offender status, argues that this prohibition was manifestly unfit because, at most, he only “poses a risk to re-offend with children in his care”.
[54] I would not accept this submission.
[55] As this court noted at para. 41 of R. v. M.C., 2020 ONCA 510, 390 C.C.C. (3d) 389, a prohibition under s. 161 falls within the definition of "sentence" in s. 673 of the Criminal Code. While a sentence or one of its provisions may be manifestly unfit even if the sentencing judge made no error in imposing it, the threshold is very high and must reflect a sentence that is “clearly excessive or inadequate” or which represents a “substantial and marked departure”: M.C., at para. 43; R. c. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 52. Further, whether a s. 161(1) prohibition or a probation order is included as well as the terms of each order are largely matters that engage the discretion of the sentencing judge. The exercise of this discretion in both its aspects is entitled to substantial deference on appeal: M.C., at para. 45.
[56] Related convictions are not prerequisites to an order under s. 161(1). Nor must the offender have committed the offence in the circumstances contemplated by the order. A finding of pedophilia is not necessary either. A sentencing judge need only have an evidentiary basis upon which to conclude that the particular offender poses a serious risk to young children and be satisfied that the terms of the order are reasonable attempt to minimize it: R. v. R.K.A., 2006 ABCA 82, 208 C.C.C. (3d) 74, at para. 32; see also K.R.J., at para. 48.
[57] In this case, the same evidence showing that the appellant repeatedly took advantage of his access to J.D. reasonably supports the limits on his future access to children imposed by the sentencing judge, including the order under s. 161(1)(a). In addition to the inherent seriousness of the appellant’s offences, the relevant evidence showed that the assaults were prolonged, and included multiple incidents over several years. He denied responsibility for his actions, a factor that may be indicative of future risk. The presentence report indicated that the appellant “would benefit from controls placed upon him that would enhance public and victim safety,” and “would benefit from engaging in sexual offending programming to address his offending behaviour to prevent future recidivism.”
[58] In short, there is no basis to interfere with his discretionary judgment call in including this section.
(5) Section 161(1)(c)
[59] In the course of oral argument, the parties advised that they agreed that the order imposed under s. 161(1)(c) could not stand because this subsection could not be applied to an offence committed prior to August 9, 2012 when the amended version of that provision came into force. Accordingly, the s. 161(1)(c) order should be removed from the sentence imposed.
(6) Disposition
[60] For the foregoing reasons, I would dismiss the conviction appeal. Leave to appeal the sentence appeal is granted, and allowed only to the extent of removing the s. 161(1)(c) order.
Released: March 15, 2022 “GRS”
“A. Harvison Young J.A.”
“I agree G.R. Strathy C.J.O.”
“I agree B. Zarnett J.A.”
