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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 2023-01-05 DOCKET: C67820

Gillese, Nordheimer and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

B.S. Appellant

Counsel: Mark C. Halfyard and Julia Kirby, for the appellant Kevin Rawluk and Raoof Zamanifar, for the respondent

Heard: October 26, 2022

On appeal from the conviction entered on April 17, 2019, and the sentence imposed on September 11, 2019, by Justice Edward E. Gareau of the Superior Court of Justice, with reasons reported at 2019 ONSC 4418.

Gillese J.A.:

I. OVERVIEW

[1] The appellant was charged with one count of indecent assault based on events that occurred sometime between November 1980 and December 1982. Following a judge-alone trial in 2019, he was convicted and sentenced to 18 months’ imprisonment. He appeals against both conviction and sentence.

[2] For the reasons that follow, I would dismiss the appeals.

II. Background

The Facts

[3] Both the complainant, R.A., and the appellant are Indigenous. When the events in question took place, the complainant was between 10 and 13 years of age and the appellant was between the ages of 18 and 20. Each lived with their respective families on the same street in the town of White River. The complainant’s family home was eight to ten houses down from the appellant’s family home. The appellant had five siblings, including a younger sister, T.S. The complainant had an older brother, K.A., and a younger sister. After completing Grade 7, the complainant moved with her family from White River.

[4] As an adult, the complainant was employed as a child protection worker. She was assigned to investigate an allegation involving the appellant and his ex-partner. That assignment eventually prompted the complainant, in 2016, to disclose to the police her allegations of historical sexual abuse at the hands of the appellant.

The Evidence at Trial

[5] This matter was tried by judge alone over four days. The complainant and her brother K.A. testified for the Crown. The appellant and his sister T.S. testified for the defence.

[6] The complainant testified that her parents and the appellant’s parents were friends who socialized at one of their homes or a local bar approximately once per month. She would sometimes play with the appellant’s sister, T.S., who was a few years older than her.

[7] The complainant alleged that the appellant sexually abused her when she visited at his family home and both sets of parents were at the bar. She described three specific incidents that occurred over a period of about three years. She said she went along with things because she wanted to fit in and be accepted.

[8] The first incident took place when she was playing hide-and-seek with the appellant at his home. The two hid in a closet on the second floor. While in the closet, the appellant began to kiss her and touch her breasts and vagina over her clothing, and he put her hand on his penis over his jeans. She believed that K.A. and T.S. were in another room having sex at the same time.

[9] The second incident the complainant recalled occurred when she slept over with T.S. in T.S.’s double bed. She said the appellant entered the bedroom, crawled on the floor to the bed and over T.S., and lay beside her. He touched her breasts and vagina underneath her night clothes, got on top of her, attempted to penetrate her vagina with his penis but could not, and left the room after 10 to 15 minutes. She said that T.S. did not make any response during this incident and that she herself did not interact with her arms or legs with either the appellant or T.S.

[10] The complainant said the third incident occurred while she was in Grade 7, shortly before she and her family moved away. She said she was smoking marijuana in the sun porch of the appellant’s family home, which he used as a bedroom in the summer. While she was sitting on the bed, the appellant touched her breasts and vagina under her clothing, placed her hand on his erect penis both over and under his clothes, and attempted to get her to perform oral sex by sticking his penis into her mouth.

[11] K.A.’s evidence corroborated much of the complainant’s evidence. He testified about the friendship between the appellant’s parents and their parents; that he and the complainant would visit the appellant’s home while the parents went out to the bar; about the occasions on which the complainant said she had been at the appellant’s family home; and, that they played upstairs in the appellant’s family home in areas with spots of privacy.

[12] K.A. also testified that he and T.S. had sex upstairs in the appellant’s family home in one of those private areas. K.A. said it was the first time he had sex with a woman and, during it, the appellant and the complainant were on the other side of a makeshift wall in the room with the lights off.

[13] The appellant testified that he had never sexually touched the complainant. He said he did not know if his parents socialized with the complainant’s parents. He also gave differing accounts of when he actually met the complainant. At one point, he said that when he was 16 to 18 years of age he did not know who the complainant was and first met her when she was working as a child protection worker. At another point, he testified that he knew her when she was 17 or 18 years old and going to the bar in the appellant’s home community. He frequently answered questions with “never happened”.

[14] T.S. gave evidence in which she distanced herself from the complainant and suggested that her parents did not have a close relationship with the complainant’s parents. T.S. testified that no one ever slept over at her home because she shared a bedroom with her sister and there was no room for another person. She was firm that the complainant never slept over at her home and was never in bed with her at her home.

Reasons for Conviction

[15] In accordance with the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge first considered the appellant’s evidence. He found it to be rehearsed, unbelievable at points, difficult to accept, and lacking the ring of truth. The reasons he gave for concluding that he did not believe the appellant’s evidence and it did not raise a reasonable doubt include:

• the appellant’s “flat denial” that he ever sexually touched the complainant and his repeated response of “never happened”, even for the most difficult questions that would not call for such a response;
• the appellant’s evidence that he did not know if his parents socialized with the complainant’s parents despite the fact the two families lived on the same street in a small community, for a number of years, in homes that were only eight to ten houses apart; and
• the appellant’s attempts to distance himself from the complainant and inconsistencies in his evidence on this matter. At one point, the appellant testified that when he was 16 to 18 years of age, he did not know who the complainant was and that he first met her when she was working as a child protection worker. At another point, the appellant said he knew the complainant when she was 17 or 18 and going to the bar in the appellant’s home community – a time many years before she was employed as a child protection case worker and when she and her family had not lived in the same community as the appellant for many years.

[16] By contrast, the trial judge found the complainant’s evidence “compelling and convincing”. He noted that she did not embellish or exaggerate her evidence, did not commit to things unless she had a specific memory of them, was candid and admitted facts even if they were not helpful to her position, and was not impeached in cross-examination. He noted the consistency of the complainant’s testimony throughout the process: in her statements to the police; at the preliminary inquiry hearing; in direct examination; and, in cross-examination.

[17] The trial judge found that K.A.’s evidence corroborated much of the complainant’s evidence on matters including the relationship between his and the complainant’s parents and those of the appellant; the occasions on which the complainant had been at the appellant’s family home; that he and the complainant would visit the appellant’s family home when both sets of parents had gone out to the bar together; and, that they played on the second floor of the appellant’s family home in areas with spots of privacy.

[18] The trial judge also noted K.A.’s testimony that he and T.S. had sex upstairs in the appellant’s home in one of those private areas while the appellant and the complainant were on the other side of a makeshift wall in the room. Although K.A. had no knowledge of what the appellant and complainant were doing, his evidence placed them together, alone, upstairs in the appellant’s family home.

[19] The trial judge found that T.S. made every attempt to assist the appellant. He said it was “clear to the court” that T.S. was “purposeful and overt in her evidence” to distance herself from the complainant and to downplay the relationship between her parents and the complainant’s parents.

[20] While the trial judge had concerns about the “self-serving nature” of much of T.S.’s evidence, it did raise a doubt about the bedroom incident as related by the complainant.

[21] The trial judge found, beyond a reasonable doubt, that the appellant acted as alleged in the first and third incidents and convicted the appellant of indecent assault contrary to s. 149(1) of the Criminal Code, R.S.C. 1970, c. C-34, as amended by S.C. 1972, c. 13, s. 70.

Reasons for Sentence

[22] The Crown sought a custodial sentence of between 12 and 18 months followed by 3 years’ probation. The defence sought a conditional sentence in the community or, alternatively, a 90-day intermittent sentence to enable the appellant to retain his employment. A pre-sentence report was provided but no Gladue report was prepared.

[23] The trial judge set out several mitigating factors. The appellant had a criminal record but had never previously received a custodial sentence; was gainfully employed; contributed positively to his community; had made remarkable strides in becoming a mentor and father to his children; had sought treatment to deal with depression and substance use; and, presented minimal indications of future sexual re-offending.

[24] The trial judge also set out several aggravating factors. These included the age disparity between the offender and the complainant, the vulnerability of the complainant due to her young age, the escalation of behaviour by the offender over time, and the devastating effect that the sexual abuse had on the complainant. He identified the appellant’s lack of remorse to be a neutral factor.

[25] As the case involved a sexual offence against a child, the trial judge identified the primary sentencing objectives to be denunciation and deterrence. He reasoned that although the appellant was eligible for a conditional sentence, in light of the aggravating factors, a conditional sentence would not adequately address these objectives. He rejected an intermittent sentence for the same reasons. He observed that, if the Crown had sought a sentence of 2 years less a day, he would have imposed it.

III. THE Issues

[26] On the conviction appeal, the appellant submits that the trial judge erred by:

1. failing to grapple with reliability concerns respecting the complainant’s evidence;
2. rejecting his evidence because of his demeanour and “flat denials”; and,
3. using the complainant’s lack of embellishment to bolster her credibility.

[27] On the sentence appeal, the appellant submits the trial judge erred by declining to impose a conditional sentence.

IV. THE FRESH EVIDENCE

[28] No Gladue report was prepared prior to sentencing. Initially, the appellant predicated his sentence appeal, in part, on a claim that the trial judge erred in sentencing him in the absence of such a report. However, after having perfected his appeal, counsel learned that the trial judge had raised the issue of a Gladue report with defence counsel in advance of sentencing, and defence counsel had suggested that such a report was not required.

[29] A Gladue report was prepared after sentence had been imposed. The appellant wished to introduce that report in support of his sentence appeal. He brought an application under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46, for leave to introduce fresh evidence that included an agreed statement of facts, to which the report was attached.

[30] Counsel for both parties confirmed with defence counsel that he agreed with the contents of the agreed statement of facts and also agreed with the appellant’s method of proceeding. They then appeared before Paciocco J.A. on a case conference. As a result of the case conference, by endorsement dated November 24, 2021, Paciocco J.A. stated: Issues arise relating to the failure of trial counsel to secure a Gladue report to assist in the appellant’s sentencing. In an effort to avoid the delays and complexity inherent in complying with the full ineffective assistance of counsel protocol and the need for a contested fresh evidence application the parties and trial counsel have agreed, under my supervision, to simplify and expedite the appeal process by proceeding based on an agreed statement of fact relating to trial counsel’s thought process leading to his decision not to seek a Gladue report.

[31] In the circumstances, this court admitted the fresh evidence.

[32] I note that it is unlikely that the Gladue report would have satisfied the test for the admission of fresh evidence set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. In Palmer, the Supreme Court instructs that fresh evidence can be admitted on appeal if it: (1) could not have, by the exercise of due diligence, been available at trial; (2) is relevant in that it bears upon a decisive or potentially decisive issue; (3) is credible in the sense that it is reasonably capable of belief; and, (4) is such that, if believed, it could have affected the result at trial (at p. 775). There is nothing in the record to indicate that a Gladue report could not have been available at sentencing through the exercise of due diligence.

V. THE CONVICTION APPEAL

Issue #1 The trial judge did grapple with the complainant’s reliability

[33] I do not accept the appellant’s submission that the trial judge failed to consider and assess the complainant’s reliability.

[34] It is correct that the trial judge does not use the word “reliability” in his reasons. However, there is no requirement that he do so. In R. v. G.F., 2021 SCC 20, the Supreme Court explains that there is a presumption that trial judges correctly apply the law, particularly regarding the relationship between reliability and credibility (at para. 82). Provided trial judges turn their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns, there is no requirement that they utter the word “reliable” (at para. 82).

[35] As I explain above, the trial judge turned his mind to the complainant’s credibility. As for reliability, in my view, it is clear that reliability concerns underlay the trial judge’s conclusion that he was not satisfied beyond a reasonable doubt that the second incident happened. At para. 36 of his reasons, the trial judge said: I am not saying that the complainant is purposely misleading the court in giving the evidence about the alleged incident in the bedroom, but in assessing the impact of the evidence of [T.S.] I cannot conclude with the certainty required that the bedroom incident happened as related to the court by the complainant.

[36] In this passage, the trial judge is explaining that he was not satisfied of the reliability of the complainant’s evidence in respect of the second incident.

[37] Because the trial judge carefully scrutinized the relevant evidence and factors that went to the believability of the complainant’s evidence, including truthfulness and accuracy concerns, there is no basis for appellate intervention (G.F., at para. 82).

Issue #2 The trial judge made no error in rejecting the appellant’s evidence

[38] The appellant is incorrect in asserting that the trial judge rejected his evidence because he gave a “flat denial”. He rejected the appellant’s evidence because he found it to be rehearsed, unbelievable at points, difficult to accept, and lacked the ring of truth.

[39] The trial judge gave a number of examples of where the appellant’s evidence was simply incredible. A prime example of this is the appellant’s evidence on when he first met the complainant. In direct examination, the appellant said he first met the complainant when she was working as a child protection worker. However, he also testified that he met the complainant when she was 17 or 18 and going to the local bar, a time many years before she began work as a child protection worker and when the complainant and her family had not lived in the town where the appellant resided for many years.

[40] Another example was the appellant’s evidence that he was unaware of his parents’ friendship with the complainant’s parents and that they socialized together. As the rest of the evidence showed, in this small community where only eight or ten houses separated the two families, the two sets of parents often socialized together.

[41] The trial judge did refer to the appellant’s “flat denial” that he ever sexually touched the complainant. However, as is evident from the trial judge’s reasons, it was not the denial that he found contributed to the appellant’s lack of credibility. Rather, it was the appellant’s “robotic” and “rehearsed” response of “never happened” even to difficult questions for which such an answer was not appropriate that contributed to his credibility determination.

[42] A trial judge’s credibility findings “deserve particular deference” because the trial judge is “the fact finder and has the benefit of the intangible impact of conducting the trial” (G.F., at para. 81). I see no basis on which to interfere with the trial judge’s determination of the appellant’s credibility.

Issue #3 The trial judge did not use the complainant’s lack of embellishment to bolster her credibility

[43] The trial judge found the complainant’s evidence to be compelling and convincing. He observed that she did not embellish or exaggerate her evidence, did not commit to things unless she had a specific memory of them, was candid and admitted facts even if they were not helpful to her position, and was not impeached in cross-examination. The appellant points to the reference to the lack of embellishment and says that the trial judge committed the same error as was made in R. v. Alisaleh, 2020 ONCA 597. I disagree.

[44] At para. 17 of Alisaleh, this court found that the trial judge saw the lack of embellishment to be an “important factor” used to “enhance” the complainant’s credibility. That did not happen in this case. The trial judge observed that the complainant did not embellish her evidence when explaining why he found the complainant’s evidence “compelling and convincing”. As summarized above, his explanation encompassed a number of factors including the absence of those tending to diminish credibility.

[45] The Supreme Court’s direction at para. 81 of G.F., set out above, to give “particular deference” to a trial judge’s credibility determination applies to this ground of appeal as well. There is no basis to interfere with the trial judge’s determination that the complainant’s evidence was credible.

VI. THE SENTENCE APPEAL

[46] The appellant initially contended that the trial judge erred in two ways when determining sentence. First, he said that the trial judge erred by failing to turn his mind to whether a Gladue report was required. As I explain above, the trial judge in fact raised the matter of a Gladue report with defence counsel in advance of sentencing and defence counsel indicated that one was not required. Accordingly, this ground of appeal falls away. Thus, his appeal against sentence rests on the second alleged error: that the trial judge failed to fully consider the sentencing principles in s. 718.2(e) of the Criminal Code given the appellant’s Indigenous status. In light of this alleged error, the appellant asks this court to vary the sentence and impose an 18-month conditional sentence.

[47] Sentencing judges are in the best position to determine just and appropriate sentences: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41. Appellate intervention is warranted in only two situations: (1) where the trial judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and the error had an impact on the sentence, or (2) where the sentence is demonstrably unfit: Lacasse, at paras. 44, 51.

[48] The appellant does not contend the sentence is demonstrably unfit. In fact, as the trial judge himself indicated, the sentence was on the lenient end of the spectrum of fit sentences. Therefore, only the first situation must be considered to decide whether appellate intervention is warranted.

[49] Denunciation and deterrence are the primary objectives when sentencing for sexual offences against children. Carceral sentences will ordinarily follow and conditional sentences will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate: R. v. Friesen, 2020 SCC 9, at paras. 114-116; R. v. M.M., 2022 ONCA 441, at paras. 15-16.

[50] The trial judge carefully considered the appellant’s Indigenous status and the other relevant factors, including the aggravating and mitigating factors, before concluding that a conditional sentence could not achieve the objectives of denunciation and deterrence given the particular offence and the particular offender. He pointed to the age disparity between the appellant and the victim, the victim’s vulnerability due to her young age, the escalating nature of the appellant’s acts, and the devastating effect of the abuse on the victim.

[51] In Friesen, at para. 92, the Supreme Court cautions that the systemic and background factors that played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness. However, at para. 70, it also emphasized that, when a child victim is Indigenous, the court may consider the “sexual victimization of Indigenous children at large in imposing sentence”. Thus, while the appellant was sentenced before s. 718.04 of the Criminal Code (offence against vulnerable person) came into effect, it is appropriate to consider that the complainant was particularly vulnerable not only because she was a child but also because she was Indigenous.

[52] With due regard for the Gladue report, I see no exceptional circumstances that render incarceration inappropriate or reduce the appellant’s moral blameworthiness. Much of the information about the appellant’s indigeneity was before the court below through the pre-sentence report and defence counsel’s submissions. Further, even if para. 23 of the trial judge’s reasons can be read as wrongly requiring a causal connection between the appellant’s indigeneity and the offence, in my view, it did not have an impact on the sentence or render it unfit.

[53] Accordingly, I see no basis for interfering with the sentence as imposed.

[54] In light of the foregoing, it is not necessary to decide whether the appellant was statutorily eligible for a conditional sentence, a matter raised by the Crown.

VII. Disposition

[55] For these reasons, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would also dismiss the sentence appeal.

Released: January 5, 2023 “E.E.G.” “E.E. Gillese J.A.” “I agree. I.V.B Nordheimer J.A.” “I agree. L. Sossin J.A.”