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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221125 DOCKET: C69204

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King Respondent

and

B.H. Appellant

Counsel: James Foy, for the appellant Heather Fregeau, for respondent

Heard: November 2, 2022

On appeal from the conviction entered on July 25, 2019 by Justice R. Cameron B. Watson of the Ontario Court of Justice.

REASONS FOR DECISION

[1] Following a judge alone trial, the appellant was found guilty of sexual assault, sexual touching and invitation to sexual touching in relation to his half‑sister, R.H. The appellant appeals.

Background

[2] R.H. alleged that the appellant sexually abused her over a period of about two years from 2015 to early 2017 when she was between 14 and 16 years old. The first incident happened while R.H. and the appellant were sitting on a couch watching TV. R.H. fell asleep and woke up to a feeling of a hand going under her shirt and over her bra. Subsequent incidents involved increasingly more intrusive abuse, including digital penetration of R.H.’s vagina, the appellant forcing R.H. to put her hand on his penis and attempts by the appellant to penetrate R.H.’s vagina with his penis. Incidents occurred both on the couch and in R.H.’s bedroom while R.H. was sleeping or pretending to sleep. The sexual abuse stopped around when the family moved houses when R.H. was around 16. R.H. testified that she eventually disclosed the abuse to her father, S.H. Although R.H. testified that S.H. was initially supportive of her going to the police, she said he later discouraged her, telling her that there was no evidence of the things she said the appellant did to her and no one would believe her.

[3] The complainant’s sister A.H. also testified at trial. The appellant, A.H. and R.H. all have the same father. A.H. lived with her mother and visited her father on the weekends. When she visited her father, she slept in R.H.’s bed. A.H. testified that during one of her visits, when she was about 13 or 14 years old, she woke up to the appellant touching her breast under her bra. After the incident, A.H. never returned to her father’s house. She did not tell R.H. what had happened to her at the time. She did tell her father, but his reaction was simply, “boys will be boys”. The Crown sought to introduce this aspect of A.H.’s evidence as similar fact evidence. The trial proceeded as a blended similar fact application voir dire /trial. At the conclusion of the Crown’s case, following submissions on the application, the trial judge dismissed the Crown’s request to admit similar fact evidence.

[4] A.H. also testified about disclosing what had happened to her, to R.H. A.H. had her own apartment at the time. R.H. spoke to her about a break-up with a boyfriend and the two went to A.H.’s apartment to talk. A.H. told R.H. that the appellant had touched her breast. R.H. started crying and said the appellant did something similar to her. She said he would come into her room in the middle of the night and hold her down while he touched her. (This conversation will be referred to in these reasons as the “disclosure conversation”).

[5] A.H. and R.H. both testified about communicating with the appellant’s Facebook account.

[6] In June 2017, shortly after the disclosure conversation, A.H. messaged the appellant’s Facebook account and said that she knew he touched R.H. in the same way that he touched her. She received no response. In a subsequent conversation between A.H. and the appellant’s Facebook account, she received a response in which the sender acknowledged touching A.H.’s boob “once”, denied more intrusive sexual contact and expressed regret about having put A.H. and R.H. “through this”. A.H. subsequently told R.H. that the appellant had admitted to touching her breast. R.H. told A.H. that the appellant had also admitted what he had done to her via Facebook messaging. A.H. testified that she did not talk to R.H. about messaging the appellant on Facebook before doing so. She also denied that she and R.H. had gotten together and made up their allegations against the appellant.

[7] R.H. also testified about messaging the appellant’s Facebook account in June 2017. The messages indicated R.H. began messaging the account the day after A.H. did so. In one of her messages, R.H. said that both she and A.H. were aware of what he had done to them. She messaged that she never wanted to see him around again. The appellant’s account responded, indicating a desire to try and apologize and get help. R.H. requested that he tell her the truth about what happened. She asked if he ever “[got] all the way with [her]”. R.H. received a response denying that happened but expressing regret for what did happen.

[8] The appellant testified at trial and denied the allegations. He also claimed that the timing of R.H. and A.H.’s messages was suspect and that the Facebook messages were falsified by an unknown third party. However, he acknowledged that his Facebook account was password protected and that he was the only one who knew the password. S.H., the father of the appellant, R.H. and A.H., also testified at trial as a witness for the appellant. He said that, with the exception of the bedrooms, there were motion sensitive CCTV cameras throughout the house to protect his marijuana plants [1] which would have recorded any of the activity R.H. claimed happened on the couch.

[9] In his reasons, among other things the trial judge observed that R.H. was an emotional witness, that she was unshaken in cross-examination and that any gaps in her recollection of the timing of the abuse did not affect her reliability and credibility – she knew when it began, when it stopped and what had happened to her. The trial judge rejected the appellant’s denials of R.H.’s allegations. He found his claims concerning the Facebook messages illogical and fanciful and his denials of the abuse unbelievable. He was satisfied the Facebook messages had not been fabricated and concluded they were inculpatory and constituted an admission against interest. The trial judge also rejected S.H.’s evidence about the extent of the CCTV cameras as having been contrived to assist his son.

Discussion

[10] The appellant raises two issues on appeal.

[11] First, the appellant submits that the trial judge erred in failing to address the issue of inadvertent tainting. Although the trial judge found that there had been no “actual collusion” between R.H. and A.H., the appellant submits that the trial judge erred in failing to address the issue of inadvertent tainting arising from the possibility that R.H.’s version of the events was inadvertently tainted or coloured as a result of her discussions with A.H.

[12] Second, the appellant submits that the trial judge erred by making a finding of no motive to fabricate without an evidentiary foundation, thereby reversing the burden of proof.

Did the trial judge err in failing to address the issue of inadvertent tainting?

[13] The appellant first raised collusion as an issue when making submissions on the Crown’s similar fact evidence application. The trial judge rejected the Crown’s similar fact application for two reasons: lack of distinctive factors, and lack of probative value given that A.H. alleged only one incident of sexual touching.

[14] Concerning collusion, the appellant submits that, in his similar fact ruling, the trial judge accepted a Crown submission that there was no evidence of “actual collusion”. This finding, says the appellant, demonstrates that the trial judge failed to appreciate or consider that there is a spectrum of collusion. In other words, there is a difference between “actual collusion” at one end of the spectrum, in which witnesses collude intentionally to fabricate or exaggerate their allegations, and inadvertent tainting at the other end of the spectrum, where a complainant’s evidence can become inadvertently tainted or “coloured” by the evidence of another witness, or improper questioning or suggestions by a person to whom the complainant discloses.

[15] The appellant points, in particular, to a portion of defence counsel at trial’s (not Mr. Foy) submissions on the Crown’s similar fact application, where defence counsel noted that there can be a danger of both intentional and unintentional mixing of evidence where two witnesses who have a close connection discuss their allegations before charges are laid and then testify to similar scenarios. The appellant further submits that the trial judge’s comments in colloquy with defence counsel also show that the trial judge understood, erroneously, that, to constitute collusion, discussions had to have a “nefarious tone”. In addition, the appellant points to the trial judge’s finding in his reasons on the similar fact application that there was no “actual collusion” between A.H. and R.H. in this case as demonstrating that the trial judge never appreciated or turned his mind to the issue of inadvertent tainting which had been raised by defence counsel’s submissions.

[16] The appellant acknowledges that there must be an air of reality to inadvertent tainting before any failure to consider the issue can amount to reversible error. He says the air of reality in this case arises from the common theme in the evidence of A.H. and R.H. that the first (in R.H.’s case), or only (in A.H.’s case), incident of sexual touching arose when they were sleeping and awoke to the appellant touching their breast.

[17] We reject these submissions for several reasons.

[18] As a starting point, as we read the submissions on the similar fact application, defence counsel at trial did not actually advance an argument that there was a danger in this case of inadvertent tainting. Rather, when pressed by the trial judge concerning the precise basis for his submissions on collusion, defence counsel submitted that the danger associated with the disclosure conversation is that the first mention of the appellant’s name as an abuser came from A.H., not R.H. Patently, this is an allegation of intentional fabrication, going to R.H.’s credibility, rather than an allegation of inadvertent tainting, which goes to reliability: R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552, at paras. 30, 32.

[19] Second, we see no air of reality to the appellant’s argument that there is a risk that R.H.’s evidence was inadvertently tainted or coloured by the disclosure conversation or any other discussion with A.H. In her evidence, R.H. alleged multiple incidents of intrusive sexual abuse going well beyond that which A.H. alleged occurred in the single incident to which she testified. We see no realistic possibility that R.H.’s allegations were somehow inadvertently tainted by her discussions with A.H. R.H.’s allegations were of a much more intrusive and persistent character than A.H.’s allegation. As Hoy J.A. said in R. v. E.M.M., 2021 ONCA 436, at para. 19, “courts must be wary of jumping to the conclusion that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation.”

[20] Third, although the trial judge’s use of the words “actual collusion” may have been derived from the Crown’s submissions on the similar fact evidence application, we do not read those submissions as being confined to intentional fabrication. Rather, the Crown noted that A.H.’s evidence related to one incident, whereas R.H. described many more invasive incidents that occurred over a couple of years. The Crown then submitted there was no evidence of “actual collusion.” As we read this submission, it was effectively an assertion that there was no air of reality to any claim of collusion on the facts of this case.

Did the trial judge err by making a finding of no motive to fabricate without an evidentiary foundation thereby reversing the burden of proof?

[21] After reviewing the evidence of the various witnesses, in the analysis section of his reasons, the trial judge conducted a W.(D.) [2] analysis. As we have said, the trial judge rejected both the appellant’s evidence and that of the appellant’s father. Concerning the appellant’s evidence, the trial judge found the appellant’s answers concerning how the messages from R.H. and A.H. appeared on the appellant’s Facebook account illogical. Further, the trial judge said the appellant’s denials of R.H.’s allegations were “coloured with illogical qualifications.” The trial judge noted that he had considered the appellant’s evidence in the context of the whole of the evidence. He said he was not rejecting it “simply because [he had] found the complainant’s evidence to be credible and reliable”, but rather “because it [did] not have a ring of truth to it, was illogical and for the reasons previously cited in [his] decision.”

[22] Concerning the second step of W.(D.), the trial judge said the defence evidence did not leave him with a reasonable doubt.

[23] Concerning the third step of W.(D.), the trial judge said the following:

All of the evidence and submissions by both counsel … allows me to conclude that the Crown has proven beyond a reasonable doubt that [the appellant] is guilty of each of the three counts. I accept the evidence of [R.H.] and the [inculpatory [3] ] Facebook conversations in that regard.

I also accept that there was no collusion between [R.H. and A.H.] in this case. There is no motive to fabricate on their part, no animus between [R.H., A.H.] and the [appellant] . There was no animus between [R.H., A.H.] and the [appellant] until these allegations broke . I find that they did not make up the allegations against [the appellant] to do so to get back in some way either at the father or at [the appellant] himself . I find that there was no positioning of any sort for any family benefit . In short, there is no reason for [R.H.] to fabricate her evidence . [Emphasis added.]

[24] The appellant submits that the emphasized portion of this section of the trial judge’s reasons demonstrates that the trial judge found that the Crown had proven that the complainant had no motive to fabricate when there was no evidentiary basis for making such a finding. The appellant points to trial counsel’s closing submissions, which were made in writing [4] . He submits that his defence counsel at trial did not argue that the complainant had a motive to fabricate. Accordingly, this is not a case where the trial judge’s finding can be explained as merely rejecting a defence submission that the complainant had a motive to fabricate. Instead, the appellant says the trial Crown in its closing submissions invited the trial judge to find it had proven the complainant had no motive to fabricate. The appellant submits the trial judge adopted those submissions and used his finding to improperly bolster the complainant’s credibility at the third stage of the W.(D.) analysis. However, he asserts that the factors relied on by the Crown and the trial judge to support the finding, such as evidence of a good relationship between the complainant and the appellant, were not capable of proving the complainant had no motive to fabricate. At best they could show the complainant had no apparent motive to fabricate, a neutral factor, which the trial judge was not entitled to use to enhance the complainant’s credibility, which he improperly did.

[25] We do not accept these submissions. In his written closing trial submissions, the appellant asserted, “it is clear that [A.H.] maintains significant animus toward [the appellant]. Her evidence must be approached with caution. She shares that animus with [R.H.]”

[26] In our view, this was an assertion of motive to fabricate and collude on the part of both A.H. and R.H. As we read this submission, defence counsel at trial used the term “animus” as being the equivalent of motive to fabricate. The Crown responded in its written closing trial submissions with reasons why the allegation of motive to fabricate should be rejected: pre-assault normal, for-the-most-part good, sibling relationships and nothing to gain for R.H. in her family from making false allegations. The trial judge essentially accepted the Crown’s submission.

[27] Viewed in the context of the whole of the trial judge’s reasons, we read his findings of no motive to fabricate and no animus as nothing more than a rejection of defence counsel at trial’s assertion of animus (motive to fabricate) and not a factor that he used to improperly bolster R.H.’s credibility.

[28] As this court held in R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, word choice alone is not determinative of whether the trial judge erred in findings related to motive to fabricate. In the present case, had the trial judge found a proven absence of motive to fabricate as alleged by the appellant, one would have expected that finding to play a prominent role in his credibility assessment. Here, as we have said, we conclude the trial judge’s finding was nothing more than a rejection of a defence argument concerning animus/motive to fabricate.

[29] Having said that, we wish to emphasize that nothing in these reasons should be read as diminishing the caution this court has urged when dealing with the issue of motive to fabricate: see, for example, R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 140; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534.

[30] Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

[1] The trial judge noted in his reasons that S.H. had a licence to grow medical marijuana, which S.H. grew in his basement.

[2] R. v. W.(D.) (1991), 63 C.C.C. 3d 397 (S.C.C.).

[3] Previously in his reasons, the trial judge had found that the messages from the appellant’s Facebook account acknowledging certain conduct were admissions against interest and inculpatory.

[4] Although the written submissions of trial counsel are undated, it is apparent from para. 28 of the trial Crown’s closing submissions that defence counsel at trial delivered submissions first and the trial Crown responded.