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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240911 Docket: COA-23-CR-0094

Huscroft, George and Copeland JJ.A.

Between

His Majesty the King Respondent

and

R.H. Appellant

Counsel: Colleen McKeown, for the appellant Stephanie A. Lewis, for the respondent

Heard: August 28, 2024

On appeal from the conviction entered on September 21, 2022 by Justice Russell Wood of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction on one count of sexual exploitation.

[2] The complainant was 17 years old at the time of the offence. The appellant was an acting coach at the complainant’s high school. In the summer of 2013, when the offence occurred, the appellant was her employer in a summer job involving preparing for the next year’s high school show production. The complainant alleged that the appellant engaged in sexual contact with her over the summer while she was his employee. The appellant testified and denied that there was any sexual contact between him and the complainant. There is no dispute that the appellant was in a position of trust or authority towards the complainant at the time of the offences because he was her employer and her teacher.

[3] The count on which the trial judge convicted the appellant (count one) was a global count that alleged that over the summer of 2013, the appellant performed oral sex on the complainant and digitally penetrated her on several occasions. In finding the appellant guilty of that count, the trial judge explained why he found the Crown’s case sufficiently compelling that it persuaded him beyond a reasonable doubt of the appellant’s guilt. Although the trial judge identified no specific frailties with the appellant’s evidence, he rejected the appellant’s evidence and found it did not leave him with a reasonable doubt based on his findings about the strength of the Crown’s case, referring to this court’s decision in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. The trial judge acquitted the respondent on two other counts, one of sexual exploitation (count two) and one of sexual assault (count three). Unlike count one, counts two and three each alleged a specific incident.

[4] The appellant argues that the trial judge erred in relying on his belief of the Crown’s case as a basis to reject the appellant’s evidence because the reasons for judgment do not provide a “considered and reasoned” basis for accepting the Crown’s case beyond a reasonable doubt. The appellant relies on cases such as R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at paras. 69-71; R. v. A.N., 2017 ONCA 647, at para. 16; and R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552, at paras. 54-55, to support this argument. The appellant raises three specific areas where he argues the reasons are deficient.

[5] We dismiss the appeal for the reasons that follow.

(1) The trial judge’s reasons for finding that the Crown’s case was sufficiently compelling to prove the charges beyond a reasonable doubt

[6] Before turning to the three specific areas where the appellant argues that the trial judge’s reasons were deficient, we summarize the basis on which the trial judge found the Crown’s case sufficient to prove the charge beyond a reasonable doubt and rejected the appellant’s evidence. We do so because in order assess whether the trial judge provided a “considered and reasoned” basis to believe the Crown’s case beyond a reasonable doubt, it is necessary to engage with the reasons he provided for believing the Crown’s case beyond a reasonable doubt.

[7] The primary points in the trial judge’s analysis of the evidence leading to his conclusion that count one had been proven beyond a reasonable doubt were the following.

1. The trial judge found the complainant’s evidence to be credible

The trial judge made the following findings about the complainant’s evidence:

I find that J.B. gave her evidence in a credible manner. She did not guess at answers or exaggerate. J.B. was not evasive and remained unshaken in her assertions regarding the sexual offences under cross-examination. Her answers were internally and externally consistent, that is, she was not contradicted to any significant degree on prior statements that she had provided, and her evidence was consistent with other witnesses, and her general chronology made good sense.

There was no aspect of her evidence that was inherently implausible. The way that J.B. described how the sexual acts ended at the end of the summer of 2013 was very compelling and realistic. Any inconsistencies in J.B.’s evidence was minimal, and one could expect some inconsistencies on peripheral details after the passage of the better part of a decade.

2. The trial judge found the evidence of the appellant’s son to be confirmatory of the complainant’s evidence on count one

The trial judge accepted the evidence of the appellant’s son that on one occasion when he unexpectedly came home, he walked in on the appellant and the complainant cuddling on the couch, describing it as “powerful corroboration [1] of the illicit relationship” that the appellant engaged in with the complainant.

3. The trial judge rejected the motive to fabricate proffered by the appellant

The trial judge considered a particular motive to fabricate proffered by the defence and rejected it. The appellant had argued that the complainant’s allegations (reported to police in 2020, after allegations had been made about the appellant by others) were part of a “#metoo witchhunt” that the appellant said arose against him in the local theatre community sometime after 2017. The trial judge rejected this alleged motive to fabricate because of evidence that in late 2013, the complainant had disclosed to a former boyfriend her sexual relationship with the appellant, years before the appellant’s conduct became an issue in the local theatre community. The boyfriend’s evidence was admitted to rebut the allegation of recent fabrication contained in the proffered motive to fabricate (i.e., the suggestion that the complainant made the allegations against the appellant because of the uproar in the local theatre community some time after 2017). In considering the motive to fabricate evidence and evidence to rebut recent fabrication, the trial judge correctly instructed himself on the two legal issues relevant to that evidence: (i) that the boyfriend’s evidence was not admissible for its truth, but only to rebut the allegation of recent fabrication; and (ii) that the rejection of the motive to fabricate proffered by the defence was not the same as evidence that there was no motive to fabricate.

4. The trial judge had concerns about the reliability of the complainant’s evidence only on the particular allegations in counts two and three

The trial judge was alive to the potential impact of hindsight on the complainant, who over time came to view the sexual relationship with the appellant as inappropriate. This factor, when combined with the lack of detail and specificity on counts two and three, led the trial judge to have a reasonable doubt on those counts. However, considering the evidence as a whole, he found the complainant’s evidence of the ongoing sexual relationship during the summer of 2013, including the appellant repeatedly digitally penetrating her and performing oral sex on her, to be credible and reliable.

5. The trial judge applied the burden of proof through the lens of W.(D.) and rejected the appellant’s evidence and found count one proven beyond a reasonable doubt

The trial judge correctly instructed himself on the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, the principles from R. v. W.(D.), [1991] 1 S.C.R. 742, regarding the application of the reasonable doubt standard to issues of credibility, and the meaning of reasonable doubt as discussed in R. v. Lifchus, [1997] 3 S.C.R. 320. He also referred to this court’s decision in J.J.R.D.

The trial judge described the appellant’s evidence as “unremarkable”. The trial judge noted that the appellant did not deny that the opportunity existed for him to have engaged in the conduct alleged. The trial judge also noted that the appellant confirmed the closeness of his relationship with the 17-year-old complainant. The trial judge concluded that he did not believe the appellant’s evidence and it did not leave him with a reasonable doubt. He found that on the evidence he did accept – the evidence of the appellant’s son, the complainant’s former boyfriend, and “primarily”, the complainant – he was persuaded of the appellant’s guilt beyond a reasonable doubt.

[8] In our view, the reasons given by the trial judge provide a considered and reasoned basis for his belief of the complainant’s evidence beyond a reasonable doubt on count one. He found her to be credible and reliable. He found her evidence on count one was supported by the confirmatory evidence of the appellant’s son walking in on the appellant and the complainant cuddling on the couch. And he rejected the motive to fabricate proffered by the defence because it was rebutted by the complainant’s disclosure of the sexual touching by the appellant years earlier, before the alleged motive to fabricate arose. We turn then to whether the omissions in the reasons for judgment alleged by the appellant undermine that conclusion.

(2) The arguments raised by the appellant about deficiencies in the trial judge’s reasons

(i) The trial judge did not fail to resolve material inconsistencies in the complainant’s evidence

[9] The appellant argues that the trial judge’s reasons fail to resolve three material inconsistencies in the complainant’s evidence.

[10] First, the appellant argues that the trial judge failed to resolve the inconsistency between the alleged touching of the complainant’s genital area over her clothes while she was asleep in the car – without even apparent consent [2] – which grounded count three, and the development of the subsequent sexual relationship with the complainant where the acts were based on her apparent consent.

[11] We disagree.

[12] The appellant relies on a portion of the reasons where the trial judge explained one of the reasons that he had a reasonable doubt on count three, the count which alleged that he had touched the complainant’s genitals over her clothes while she was asleep during a car trip for work. He stated:

Further, the incident [in the car while the complainant was asleep] seemed inconsistent with the development of their relationship otherwise, and potentially creates a disconnect between that assault and the consensual, although illicit, sexual relationship that formed afterward [i.e., the conduct covered by count one]. That is not to say that such a sequence of events is not possible. There is no normal or standard development to such a relationship that I could apply to this scenario. However, the evidence left me unclear on the specifics and thus with a reasonable doubt.

[13] In our view, this passage does not disclose a failure by the trial judge to resolve an inconsistency in the complainant’s evidence. To the contrary, the trial judge was alive to and considered the qualitative difference between the alleged touching in the car when the complainant was asleep (which ultimately the trial judge was not persuaded of beyond a reasonable doubt) and conduct which formed the basis of count one, which took place with the complainant’s apparent consent. He was entitled to believe some, none, or all of the complainant’s evidence. He found her account of the apparently consensual relationship over the course of the summer to be credible and reliable. He was left with a reasonable doubt about the conduct alleged in count three, which could not have been consensual because the allegation involved touching while the complainant was asleep. These findings were open to the trial judge. They are not incompatible and do not disclose a failure to resolve inconsistencies in the complainant’s evidence.

[14] Second, the appellant argues that the trial judge failed to resolve inconsistencies in the complainant’s evidence about whether she was aware that the appellant thought of her in a sexual or romantic manner prior to the development of the sexual relationship. In particular, the appellant argues that there was inconsistency between the complainant’s evidence on the car count, where she explained she was “frozen” when she woke to find the appellant touching her because she “didn’t think he thought that way of me”, and other portions of her evidence where she described the appellant as “flirty” and said that he made her feel “special and important”.

[15] We reject the appellant’s argument that the trial judge failed to address this issue. The trial judge considered the complainant’s perspective on the appellant’s behaviour in 2013 and at the time she testified. He accepted her evidence that she found the appellant “in hindsight” to be flirty but that “she didn’t realize that at the time”. This finding was open to the trial judge. Indeed, the passages the appellant referred the court to where the complainant described the appellant’s conduct as “flirty” and making her feel “special and important” begin with the complainant explaining: “I guess I would describe it as flirting now, at the time, didn’t see it that way.”

[16] Third, the appellant argues that the trial judge failed to resolve an inconsistency in the complainant’s evidence about the meetings of the local theatre community to discuss the appellant’s conduct in the summer of 2019.

[17] We do not accept this argument.

[18] The complainant was not asked about the community meetings in examination-in-chief. In cross-examination, the complainant said she had heard about a group of people getting together to talk about the appellant. She said she was told who some of the people involved in the group were, but did not have confirmation of who was there. She said that a woman named K.J. had told her she was at the meeting and “kept her in the loop” about people meeting to talk about the appellant. The complainant said she did not know how many times the group met. The complainant said she did not want to get involved, she did not talk about it much, and that K.J. asked her if she wanted to attend “a singular meeting”. In re-examination, she said that she was “curious” about what was going on and that K.J. had brought her into one meeting by phone, anonymously (i.e., remotely).

[19] The appellant argues that the complainant’s evidence about the community meetings was inconsistent between her cross-examination and re-examination. The appellant argues that the trial judge failed to address the inconsistency and that the inconsistency shows a lack of forthrightness on the part of the complainant.

[20] The examination of the complainant on the community meetings formed a very brief portion of her evidence. She was not asked in cross-examination whether she attended any of the meetings. There is no material inconsistency between her evidence about the meetings in cross-examination and re-examination. Additional detail was provided in re-examination. But it was not inconsistent with the answers she gave in cross-examination, particularly as she was not asked in cross-examination if she attended any of the community meetings.

[21] The trial judge considered the evidence of the community meetings and accepted the complainant’s evidence that K.J. told her about the meetings to discuss the appellant. The complainant did not want to get involved. K.J. kept the complainant in the loop about the meetings. The complainant was curious about the meetings and K.J. arranged for her to join a call anonymously. These findings were open to the trial judge and do not disclose a failure to reconcile inconsistencies in the complainant’s evidence about the meetings.

(ii) The trial judge did not fail to resolve inconsistencies between the evidence of the complainant and the appellant’s son

[22] The trial judge found that the evidence of the appellant’s son of coming home one afternoon unexpectedly and finding the complainant and the appellant under a blanket on the couch provided “powerful corroboration of the illicit relationship” the appellant engaged in with the complainant. The complainant also testified about the incident where the appellant’s son walked in on her and the appellant unexpectedly when they had been engaging in sexual contact. The appellant argues that the trial judge’s reasons on this issue are not considered and reasoned because he failed to resolve inconsistencies between the complainant’s evidence about that incident and the appellant’s son’s evidence.

[23] We do not accept this submission.

[24] The trial judge recounted in his reasons the evidence of both the complainant and the appellant’s son on this issue, including some areas where their evidence differed. The differences in their evidence that the appellant points to are not so significant that they required specific comment by the trial judge in his reasons. It was open to the trial judge to find that the son’s evidence that he found the complainant and his father together under a blanket as confirmatory of the complainant’s evidence despite there being some differences in the account of the complainant and the son of that incident.

(iii) The trial judge did not fail to adequately explain why his reliability concerns about the two counts on which he acquitted the appellant did not impact his findings on the count on which he convicted

[25] The appellant argues that the trial judge failed to adequately explain why his concerns about the reliability of the complainant’s evidence on counts two and three, which led him to acquit on those counts, did not impact his finding on count one.

[26] We reject this argument.

[27] The trial judge carefully explained why he was left with a reasonable doubt on counts two and three. As context, it is important to recall that count one, on which the trial judge convicted the appellant, was a global count. It alleged repeated acts of digital penetration and oral sex over the summer of 2013. By contrast, counts two and three each alleged a specific incident. Count two was an allegation that the appellant invited the complainant to perform oral sex on him on a particular occasion. Count three was an allegation that the appellant touched the complainant’s genital area over her clothes when she was asleep during a car trip in connection with her employment.

[28] The trial judge explained that he was left with a reasonable doubt on counts two and three because of the lack of specificity and detail in the complainant’s account of these two specific incidents. He explained these concerns as going to the reliability of the complainant’s evidence on the two counts, not to her credibility. In addition, on count two, the wording of the count was particularized to the allegation that the appellant invited the complainant “to touch directly … his penis with her mouth”. The trial judge found the lack of specifics in the complainant’s evidence left him unable to conclude that the particulars pleaded had been proven beyond a reasonable doubt. The trial judge also explained that his concerns about the reliability of the complainant’s evidence on the specific incidents in counts two and three – due to the lack of detail and specificity – did not lead him to have a reasonable doubt about her evidence on count one.

[29] The trial judge’s concerns about lack of specificity and detail in the complainant’s evidence on counts two and three and their impact on her reliability on those counts do not undermine his finding that the complainant was a credible (i.e., truthful) witness. Nor do they undermine the trial judge’s finding that the complainant was reliable in her recounting of the allegations of the appellant repeatedly digitally penetrating her and performing oral sex on her over the summer of 2013. In other words, the trial judge’s concern that the complainant’s evidence about the two particular incidents alleged in counts two and three was not sufficiently detailed or specific for him to be persuaded of the appellant’s guilt on those counts was not inconsistent with his finding that her evidence about ongoing sexual contact over the summer was reliable. The trial judge was entitled to believe some, none, or all of the complainant’s evidence.

Disposition

[30] The appeal is dismissed.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”

[1] It is not necessary for purposes of this appeal to delve into the technical meaning of corroboration. We read the trial judge’s reasons as a finding that the evidence of the appellant’s son about the couch incident was confirmatory in the sense that the trial judge found it supported the complainant’s account of events.

[2] We use the phrase “apparent consent” to refer to acts where the complainant agreed to acts of sexual touching, although it was not valid consent in law because of her age and the trust relationship with the appellant. By contrast, the allegation in count three, where the complainant testified she was asleep in the car and woke to the appellant touching her genital area over her clothes, did not have any form of consent because she was asleep when the touching began.