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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220117 DOCKET: C64776
Tulloch, Pardu and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
A.R. Appellant
Counsel: A.R., acting in person Breana Vandebeek, appearing as duty counsel Avene Derwa, for the respondent
Heard: January 13, 2022 by video conference
On appeal from the conviction entered on August 1, 2017 by Justice Rommel G. Masse of the Ontario Court of Justice.
REASONS FOR DECISION
[ 1 ] The appellant A.R. appeals from conviction on 30 counts of offences, involving, inter alia , serious sexual offences upon her oldest daughter and physical abuse of her five children, extending over a period of seven years. She was also convicted of cruelty to family pets, acts that were part of the ongoing terror inflicted on the children. The children have been left with profound physical and psychological scars. (Since the trial, the appellant prefers to self-identify as female.)
[ 2 ] Duty counsel advances two arguments to suggest that the convictions should be overturned.
[ 3 ] Firstly, counsel submits that the trial judge erred at paragraph 110 of his reasons when he indicated: “The outcome of this matter depends on the court’s assessment of the credibility of key witnesses. The credibility of the five children who testified and that of the accused needs to be assessed. An assessment of credibility involves evaluation not only of the honesty of a particular witness but also the reliability of the evidence of that witness. One should not rely on the testimony of a dishonest witness in the absence of some independent corroborative evidence. However, even honest witnesses can be mistaken.” [emphasis added]
[ 4 ] Counsel argues that the trial judge misapplied R. v. W.(D.), [1991] 1 S.C.R. 742, by requiring that the appellant’s evidence be corroborated before it could raise a reasonable doubt.
[ 5 ] We would not interpret the reasons in this fashion. The trial judge correctly cited R. v. W.(D.) in the same paragraph. There is no hint anywhere in the lengthy and detailed reasons that he considered that the accused’s evidence had to be corroborated before it could raise a reasonable doubt. In making the impugned reference, it appears that the trial judge was considering the evidence led by the Crown.
[ 6 ] Secondly, duty counsel submits that the trial judge fell into error by conflating a “proven absence of motive” with “absence of evidence of motive” when he indicated at para. 127 of his reasons that “[t]he children have no motive whatsoever to bear false witness against the accused” and cited a decision of this court indicating “[a]bsence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process”: R. v. C.(G.), [2006] O.J. 2245, at para. 27.
[ 7 ] We are not satisfied that the trial judge placed any onus on the appellant to explain why the children would make the allegations against her. Nor did the trial judge find that the Crown had proven there was no motive to fabricate. Instead, the trial judge carefully rejected the theory that the children colluded to give false evidence against their father and treated the absence of evidence of a motive to fabricate as one factor among many in his assessment of the credibility of the children’s evidence, to which no objection can be made: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 3.
[ 8 ] The appeal from conviction is accordingly dismissed. The appellant is represented by counsel on the sentence appeal which is proceeding separately.
“M. Tulloch J.A.”
“G. Pardu J.A.”
“A. Harvison Young J.A.”
