Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231016 Docket: C70099

Before: Benotto, Roberts and Favreau JJ.A.

Between: His Majesty the King, Respondent And: S.R., Appellant

Counsel: Myles Anevich, for the appellant Avene Derwa, for the respondent

Heard: October 6, 2023

On appeal from the conviction entered by Justice Maria V. Carroccia of the Superior Court of Justice, on June 16, 2021.

Reasons for Decision

[1] The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching in relation to his former partner’s daughter, who was between 10 and 11 years old at the time. He received a custodial sentence of 4.5 years concurrent on the sexual interference and invitation to sexual touching convictions, plus various ancillary orders; the sexual assault conviction was conditionally stayed per Kienapple v. R., [1975] 1 S.C.R. 729.

[2] The appellant appeals his convictions only. He essentially raises two unrelated grounds that we summarize as follows: (i) the trial judge misapprehended some of the evidence; and (ii) she erred by using the appellant’s confession to his then partner, I.T., about certain sexual acts he perpetrated against the complainant, to corroborate the complainant’s evidence.

[3] We are not persuaded that the trial judge made any error in her assessment of the evidence or in the corroborative use of I.T.’s evidence about the appellant’s confession.

[4] The appellant’s position at trial and on appeal is that the complainant’s allegations were false and riddled with lies and undeniable inconsistencies that could not be rehabilitated by I.T.’s evidence about his confession. He denied confessing to any inappropriate conduct. Instead, he testified that he told I.T. it was the complainant who had attempted to touch him sexually. On this basis, the trial judge should have been left with a reasonable doubt and acquitted him of all charges. He seeks acquittals or a new trial.

[5] The trial judge did not err in her assessment of the evidence. She thoroughly and fairly scrutinized the whole of the evidence. She rejected the evidence of the appellant as it did not “make sense”. She was alive to the inconsistencies in the complainant’s testimony, including that she had admitted changing her evidence and telling lies. However, the trial judge noted that the complainant was consistent and unshaken in her evidence that the appellant made her touch his penis and masturbate him. The trial judge explained why, despite the inconsistencies in her testimony, the complainant’s evidence was corroborated by I.T.’s evidence. It was open to the trial judge to accept I.T.’s evidence about the appellant’s confession to her and to reject the appellant’s evidence about what he said he told I.T. Likewise, we are not persuaded that the trial judge misapprehended Courtney Ouellette’s evidence that the appellant had “admitted to all of the behaviours” to I.T. We see no material inconsistency between I.T.’s evidence of the appellant’s confession and what she told Ms. Ouellette.

[6] With respect to the issue of corroboration, the appellant argues that because I.T.’s evidence about his confession did not relate to the charge of sexual interference, it could not be used by the trial judge to corroborate the complainant’s evidence on that charge.

[7] We disagree. We start with the well-established principle that evidence can provide confirmatory weight even if it does not directly “confirm the key allegations of sexual assault” or “directly implicate the accused”, where it is capable of confirming or supporting certain aspects of a witness’s credibility or reliability in the context of the specific challenges made by defence counsel: R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused, [2021] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d R. v. Demedeiros, [2019] 1 S.C.R. 568; R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 69; R. v. J.B., 2022 ONCA 214, at paras. 34 and 39. As this court recently reiterated in R. v. G.H., 2023 ONCA 89, at para. 20, citing Primmer at paras. 31-33, 39, “Deciding whether evidence is confirmatory of the allegations made by a complainant is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence.”

[8] A trial judge is not obliged to find corroboration of a sexual assault complainant’s evidence: H.P., at para. 68. Here, the trial judge sought confirmatory evidence because she was not prepared to convict the appellant on the basis of only the complainant’s evidence, given the various issues that she addressed in her reasons as we earlier referenced. She was satisfied that I.T.’s evidence concerning the appellant’s confession served to “corroborate” the complainant’s testimony of all the offences. The trial judge concluded that “[a]ny credibility concerns arising from the inconsistencies in C.O.’s evidence are alleviated because I accept the evidence of I.T.” We see no error in the trial judge’s confirmatory use of I.T.’s evidence.

[9] While it may be that the trial judge used the terms “credibility” and “reliability” somewhat interchangeably in parts of her reasons, we are satisfied that the trial judge turned her 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”, and see no error that would diminish the particular deference that the trial judge’s assessments are owed on appeal: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at paras. 81-82.

[10] The appeal is therefore dismissed.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”