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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220517 Docket: C69249

Judges: Doherty, Tulloch and Favreau JJ.A.

Between: Her Majesty the Queen, Respondent and A.E.S.P., Appellant

Counsel: Peter Thorning and Deepa Negandhi, for the appellant Nicolas de Montigny, for the respondent

Heard: May 5, 2022

On appeal from the convictions entered by Justice James R.H. Turnbull of the Superior Court of Justice on October 23, 2020, with reasons reported at 2020 ONSC 6446.

Reasons for Decision

[1] At the end of argument, the court advised counsel that the appeal was dismissed with reasons to follow. The court further directed that the appellant, who was on bail pending appeal, must surrender into custody by 4:00 p.m. on Friday, May 6, 2022. These are our reasons for dismissing the appeal.

[2] The appellant was charged in 2017 with historical sexual offences involving his adopted sister, T.P., and his sisters-in-law, K.H. and S.H. The offences allegedly occurred between 1969 and 1976. The appellant was born in 1951. T.P. went to the police in 2017 and made the allegations against the appellant. The police contacted K.H. and S.H.

[3] The first three counts in the indictment alleged sexual assaults against T.P. She was born in 1961. Count one alleged gross indecency, count two alleged indecent assault, and count three alleged sexual intercourse with a person under 14.

[4] T.P. testified she was repeatedly sexually assaulted by the appellant while they were living with their parents on a farm between 1967 and 1973. The assaults occurred at various locations on the farm. T.P. described the assaults in considerable detail and gave evidence of one act of full sexual intercourse. T.P. indicated the assaults only ended when the appellant married in 1973 and moved away from the family farm.

[5] The appellant testified and denied any sexual contact with T.P. In fact, he testified he could not recall being alone with her during the 10 years they lived together on the farm. The appellant described T.P.’s relationship with him and with their mother as a bad one. The appellant also led hearsay evidence, ruled admissible on a pretrial application, that his deceased brother, G., had assaulted T.P. There was evidence that T.P. took care of G. before he died from kidney failure in 2014. The trial judge ultimately rejected the evidence identifying G. as the perpetrator of the assaults on T.P.

[6] The remaining two counts in the indictment alleged one count of gross indecency against K.H. and one count of gross indecency against her sister, S.H. K.H. and S.H. were the younger sisters of B., the woman who married the appellant in 1973. S.H. was born in 1964 and K.H. was born in 1965.

[7] S.H. testified that the sexual assaults by the appellant began by him requesting that she show him her bare breasts. This led eventually to acts of fellatio. Her younger sister, K.H., would serve as a lookout while S.H. was performing fellatio on the appellant. Eventually, K.H. was drawn into the sexual activity and she too performed fellatio on the appellant. The assaults usually occurred in the basement while their mother and older sister, B., were upstairs visiting. The assaults occurred between 1974, at the earliest, and 1976, at the latest. They stopped when K.H. told her mother. After that, the appellant was not allowed to be alone with K.H. and S.H.

[8] The appellant denied any sexual contact with either K.H. or S.H. He acknowledged that the families visited on occasion, but insisted he had very little interaction with K.H. or S.H.

[9] B., who divorced the appellant in 2008, testified that when she visited her parents with the appellant, he sometimes played outside or downstairs with K.H. and S.H. B. and her mother were always close by, but in another part of the house. B. was not aware of any sexual misconduct by the appellant. When the allegations came to light, B. recalled being told by her mother at some point in time that she did not want her two younger daughters alone with the appellant.

[10] The trial judge convicted the appellant on the charges of gross indecency and indecent assault in relation to T.P. He acquitted on the sexual intercourse charge because he had a reasonable doubt as to whether full sexual intercourse had occurred on the one occasion described by T.P. The trial judge convicted the appellant on the gross indecency charges involving K.H. and S.H. He imposed sentences totalling four years.

[11] Prior to trial, the appellant brought an unsuccessful application to sever the counts involving T.P. from the counts involving the other complainants. At the same time, the application judge ruled that the evidence of each complainant was admissible as similar fact evidence on the counts involving the other complainants. In addition to permitting cross-count admissibility, the application judge admitted the evidence of L.S., the appellant’s cousin, as similar fact evidence on each count. L.S. described two sexual assaults by the appellant in 1965 or 1966, when she was 10 or 11 and the appellant was 14 or 15. Both assaults occurred when L.S.’s family was visiting the appellant’s family. The appellant was not charged in relation to the allegations made by L.S. and he denied the sexual assaults occurred.

[12] Although counsel challenged the pretrial similar fact and severance rulings in his factum, he focused his oral argument on alleged errors made by the trial judge in his treatment of the similar fact evidence and, in particular, his assessment of the probative value of that evidence. These reasons, like the oral submissions, will focus on the trial judge’s treatment of the similar fact evidence.

[13] With respect to the arguments advanced in the factum, it is sufficient to observe that, bearing in mind the deference owed to the application judge’s rulings, there are no grounds upon which to interfere with either ruling. Indeed, as we would uphold the similar fact ruling, there is no viable basis upon which severance could have been ordered in the circumstances of this case. This was a judge-alone trial.

[14] Turning to the trial judge’s reasons, counsel submitted the trial judge made five errors in his assessment of the probative value of the similar fact evidence:

i. he failed to take into account the evidence heard at trial, but not on the similar fact application, that substantially undermined the credibility of T.P.;

ii. he failed to take into account the many dissimilarities in the description of the sexual assaults provided by the similar fact witnesses;

iii. he overvalued the relatively generic similarities in the description of the sexual assaults provided by the similar fact witnesses;

iv. he misapprehended material aspects of the evidence when considering the similarities in the description of the various sexual assaults provided by the similar fact witnesses; and

v. he failed to properly consider the evidence of collusion.

[15] In addition to the arguments pertaining to the trial judge’s weighing of the probative value of the similar fact evidence, the appellant contends the trial judge gave the absence of evidence of a motive to fabricate undue weight in assessing the credibility of K.H. and S.H.

(i) T.P.’s Credibility

[16] The appellant argued that evidence heard at trial, but not on the similar fact application, demonstrated T.P. had committed perjury during her trial testimony. In addition, the appellant submits the trial judge found that T.P.’s evidence was inconsistent in several respects with the evidence of other witnesses who the trial judge found credible. The appellant maintained that, given the trial judge’s negative assessment of T.P.’s credibility, he should have given T.P.’s evidence very little or no weight, either in relation to the counts in which T.P. was the complainant, or the counts pertaining to K.H. and S.H.

[17] It was incumbent on the trial judge to make his own assessment of T.P.’s credibility. That assessment would inevitably play a significant role in the trial judge’s determination of the weight to be given to T.P.’s evidence, both on the charges involving her and on the charges involving K.H. and S.H.

[18] The appellant’s submissions rest on the assumption the trial judge, having identified significant problems with T.P.’s credibility, rejected her evidence about the alleged assaults. The trial judge’s reasons say otherwise.

[19] In his analysis of T.P.’s evidence, the trial judge said, at para. 127:

I have significant reservations with respect to the veracity, reliability and accuracy of parts of her [T.P.] evidence.

[20] The trial judge proceeded to review T.P.’s evidence in some detail, including the evidence that she had lied to the court about an event involving her that had occurred during the trial. The trial judge also highlighted the inconsistencies between T.P.’s evidence and evidence given by other credible witnesses. Finally, the trial judge referred to the evidence suggesting T.P. had a motive to fabricate allegations against the appellant. After all that, the trial judge concluded, at para. 144:

After watching and hearing her testify, and when I considered her testimony on the essential issue of whether she was otherwise sexually abused by her older brother, I felt such acts probably did occur. However, I am not convinced beyond a reasonable doubt on the evidence of T.P. alone of the guilt of the defendant on counts one and two. However, when considered with all of the other independent and sadly similar fact evidence of S.H., K.H. and L.S., which I accept as being truthful, I am satisfied beyond a reasonable doubt that the defendant did commit an act of gross indecency and did indecently assault his sister, T.P. … [Emphasis added.]

[21] Clearly, the trial judge did not reject T.P.’s evidence that she had been sexually assaulted by the appellant. To the contrary, he believed her evidence that she had been assaulted, although not to the degree necessary to establish proof beyond a reasonable doubt. The trial judge’s acceptance of T.P.’s evidence about the assaults as “probably” true was no reason to discount the probative value of her evidence as “similar fact” evidence on the other counts.

[22] The trial judge also made no error in considering the similar fact evidence of S.H., K.H. and L.S. when deciding whether the Crown had proved the sexual assaults involving T.P. beyond a reasonable doubt. The similar fact evidence was admissible to establish the actus reus of the offences involving T.P. The similar fact evidence, if accepted, made it more likely the allegations described by T.P. actually occurred: see R. v. R.C., 2020 ONCA 159. When deciding whether the Crown had proved the charges involving T.P. beyond a reasonable doubt, the trial judge was obliged to consider all of the evidence admissible on those counts. The admissible evidence included the similar fact evidence as well as the testimony of T.P.: see R. v. Doodnaught, [2017] O.J. No. 5263 (C.A.), at para. 157.

(ii, iii) The Similarities and Dissimilarities in the Sexual Acts Described by the Similar Fact Witnesses

[23] The appellant’s submissions targeting the inadequacies of the similarities in the sexual conduct described by the similar fact witnesses and the trial judge’s failure to consider the dissimilarities in those descriptions can be addressed together. As is almost inevitable, there were both similarities in the various descriptions provided of the sexual assaults, and differences in those descriptions. The trial judge’s reasons provide a detailed review of the evidence in respect of the sexual activity alleged by each similar fact witness. That review makes the similarities and differences in the alleged conduct readily apparent.

[24] In the course of his analysis of the similar fact evidence, the trial judge, at para. 121, outlined some of the similarities which, in his view, gave that evidence probative value. We do not read this as an exhaustive list of the similarities. Nor do we accept that the trial judge was under an obligation to itemize dissimilarities in the evidence. His reasons, read as a whole, indicate that he was aware of the dissimilarities in the descriptions of the sexual acts provided by the witnesses.

[25] The probative value of similar fact evidence is not determined by cataloguing the similarities and dissimilarities of the sexual acts alleged by different witnesses and comparing the length of the lists. The context in which the alleged acts occurred is at least equally important in determining the probative value of the evidence. The circumstances in which certain conduct occurs can lend a continuity and connection to that conduct, even if the physical acts described are different: R. v. Shearing, 2002 SCC 58, at para. 60; R. v. J.C., 2021 ONCA 787, at paras. 70-72.

[26] On the narrative of the similar fact witnesses, the appellant repeatedly sexually assaulted four young girls over many years. All of the girls had a family related connection with the appellant. All of the assaults occurred in the context of family related activities. Those activities created the opportunity for the appellant to be in close contact with these young girls, in what would appear to others to be normal family activities. The identity of the victims changed as the appellant’s access to the young girls changed. Viewed cumulatively, the similar fact evidence described an ongoing course of predatory sexual misconduct over several years by the appellant, aimed at young girls to whom he had ready and apparently innocent access.

[27] We do not accept that the trial judge either failed to take into account dissimilarities in the descriptions of the sexual assaults, or overvalued the similarities in those descriptions when assessing the probative value of the similar fact evidence.

(iv) Did the Trial Misapprehend Material Parts of the Evidence?

[28] In outlining the similarities in the evidence given by the similar fact witnesses, the trial judge said, at para. 121:

The sexual acts had a similarity. They included vaginal touching under the underwear, insertion of his finger in the anus of at least two of the complainants, fellatio with three of the complainants and groping of breasts.

[29] The appellant submits the trial judge got the evidence wrong. Only one complainant (T.P.) said the appellant touched her anus. Only two complainants said the appellant touched them beneath their underwear, and only T.P. alleged intercourse.

[30] We agree that the trial judge erred when he indicated two of the complainants alleged the appellant touched their anus. It is not clear, however, that the above-quoted passage from the trial judge’s reasons contains any other factual error. While the passage may not be entirely clear, it does not actually say how many of the complainants testified they were touched underneath their underwear. Nor does the passage suggest that anyone other than T.P. described sexual intercourse with the appellant.

[31] In any event, the errors alleged are insignificant in the broader picture painted by the evidence of the similar fact witnesses. All of the witnesses described repeated, serious sexual assaults of a highly intrusive nature. The factual error made by the trial judge in his reasons could not reasonably have had any impact on his assessment of the probative value of the similar fact evidence.

(v) Collusion

[32] The appellant submits the trial judge wrongly used the absence of evidence of collusion among the similar fact evidence witnesses to bolster the credibility of those witnesses.

[33] Collusion, tainting, or even the realistic possibility of collusion or tainting, can impact on the probative value of similar fact evidence. Collusion, tainting, or the possibility of collusion or tainting, undermine the rationale for admitting similar fact evidence in that they offer an explanation for the similarity in the evidence provided by different witnesses other than the highly unlikely possibility of coincidence.

[34] The trial judge considered the possibility that the various similar fact witnesses had spoken with each other about the allegations. T.P. testified she spoke with L.S. about the assaults each had suffered some time around 1995. L.S. denied speaking with T.P. The trial judge accepted L.S.’s evidence. Based on the trial judge’s finding, there was no possibility of collusion between L.S. and T.P.

[35] There was no evidence that T.P. or L.S. ever spoke to either K.H. or S.H. about the allegations, or that K.H. or S.H. had any knowledge of the allegations made by T.P. and L.S. prior to being interviewed by the police in 2017.

[36] Collusion or tainting was a possibility with respect to K.H. and S.H. They testified they spoke about the assaults from time-to-time when they were teenagers. S.H. testified that, after the police called inquiring about the appellant, she and her sister agreed “their secret” was coming out and they should tell their story. They did not discuss what they said to the police with each other in any detail. They only told their older sister, B., about the assaults after the police had spoken with B.

[37] The trial judge accepted the evidence of the sisters. On the facts as found by the trial judge, there was no realistic possibility of collusion or tainting as between the two sisters.

[38] The absence of collusion, tainting, or any realistic possibility of collusion or tainting, will almost inevitably enhance the probative value of the similar fact evidence. If collusion and tainting are effectively taken off the evidentiary table, the unlikely possibility of coincidence will often remain as the only “innocent” explanation for the very similar accounts of the relevant events provided by the similar fact witnesses.

[39] In his factum, counsel pointed to three parts of T.P.’s evidence, which he submitted constituted evidence of collusion or tainting. T.P. said she had seen K.H. being assaulted by the appellant some time before the appellant’s wedding in 1973. She also testified that L.S. told her about the appellant’s assaults on L.S. Finally, T.P. testified she told B. about the sexual assaults the appellant had committed against her before B. and the appellant were married. B. did not believe her.

[40] None of the evidence referred to by counsel supports a finding of tainting or collusion, or even the possibility of tainting or collusion. First, the trial judge rejected T.P.’s evidence on these points. Second, her evidence lends no support to any inference that the evidence of the other similar fact witnesses was somehow influenced, consciously or subconsciously, by their contact with T.P. 25 years or more before those witnesses were asked about any sexual contact with the appellant. Finally, T.P.’s evidence that she saw K.H. being assaulted by the appellant carries no risk of tainting the evidence of K.H., her sister, or L.S.

The Trial Judge’s Treatment of the Absence of Evidence that K.H. and S.H. Had a Motive to Fabricate Their Allegations

[41] The trial judge found, at para. 51, that K.H. and S.H. “had no motivation to make up such a story against the defendant”. We think it was open to the trial judge to reach that conclusion for the following reasons:

there was no evidence of any connection of any kind between the sisters and the appellant in the almost 40 years between the alleged assaults and the police investigation;
there was nothing to suggest the sisters had any animus toward the appellant, anything to gain from revealing the assaults to the police, or any other reason to fabricate their story;
it was the police who initiated the contact with the sisters in respect of the alleged assaults. The sisters did nothing to initiate or pursue the allegations against the appellant; and
the trial judge found there was no collusion between the sisters.

[42] The factors outlined above, considered cumulatively, provided a basis upon which the trial judge could find the sisters had no apparent reason to falsely accuse the appellant: R. v. Gerrard, 2022 SCC 13, at para. 4. The trial judge did not move directly from a finding that the sisters had no motive to a determination that the sisters were credible, or that the appellant was guilty. Nor did the trial judge reverse the burden of proof and look to the appellant to provide evidence of a motive to fabricate. Ultimately, the trial judge considered the absence of any apparent motive to fabricate as one consideration to be balanced with others in assessing the credibility of the sisters. Credibility assessments fall four square within the purview of the trial judge. We defer to the trial judge’s assessment.