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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240206 DOCKET: C69169

Hourigan, Zarnett and Monahan JJ.A.

BETWEEN

His Majesty the King Appellant

and

L.B. Respondent

Counsel: Katie Doherty, for the appellant Jeff Marshman, for the respondent

Heard: January 26, 2024

On appeal from the acquittal entered by Justice Dale Parayeski of the Superior Court of Justice on February 9, 2021.

REASONS FOR DECISION

[1] Following a judge alone trial, the respondent was acquitted on charges of sexual assault and sexual interference against the complainant, T.G. The Crown appeals the acquittals on the basis that the trial judge erred in his treatment of similar fact evidence as well as in his analysis of the complainant’s alleged motive to fabricate.

[2] These grounds of appeal must be assessed in light of the fact that the Crown may only appeal an acquittal in proceedings by indictment on questions of law alone (see Criminal Code, s. 676(1)(a)). This can be contrasted with the right of an accused to appeal a conviction on grounds that it is unreasonable or not supported by the evidence (Criminal Code, s. 686(1)(a)).

[3] As we explain below, the grounds of appeal advanced by the Crown do not raise questions of law alone. We therefore dismiss the appeal.

A. The Crown’s Case

[4] In March 2019, the complainant, who was then 14 years old, moved from London to a foster home in Hamilton, where he lived with his foster mother, a support worker, and another foster child. The complainant is trans, his gender identity is male, and he was born with female genitalia.

[5] The complainant’s evidence at trial was that a few weeks after he moved to Hamilton, he was smoking marijuana after school with B.H., a fellow student whom he had recently met. The complainant wanted to get more marijuana. B.H. told the complainant that his neighbour had marijuana and would be willing to share it. B.H.’s neighbour was the respondent, L.B., who was then 52 years old.

[6] That evening, the complainant and B.H. attended at L.B.’s apartment. L.B. provided marijuana to both boys while they sat on the couch and watched television. The complainant told L.B. that he was 14 years old, that he had been put in the care of the Children’s Aid Society and that this was his first time being in Hamilton. He did not tell L.B. that he was transgender.

[7] The complainant testified that L.B. started to get a bit more “creepy”, mentioning that sometimes when his friends were over they would watch pornography together. At one point B.H. got up to go to the bathroom. While B.H. was out of the room, L.B. began stroking the complainant’s leg and asking him sex-related questions. The complainant just tensed up and did not really say anything. L.B. stopped touching the complainant once B.H. returned from the bathroom.

[8] The complainant said that B.H. later got up to go to the bathroom a second time, at which point L.B. touched the complainant’s groin over his clothing and then put his hand inside his pants. The complainant did not say or do anything as the touching occurred. He could not recall if L.B. had said anything at the time as the complainant blocked most of it out. After about five minutes B.H. returned from the bathroom and L.B. stopped touching the complainant.

[9] The complainant testified that eventually L.B. asked B.H. to leave the apartment. After B.H. left, the complainant remained seated on the couch and was alone in the apartment with L.B. L.B. sat down on the couch beside him and put his hands inside his pants, touching his vagina. L.B. removed the complainant’s clothes, laid him down on the couch, and began performing oral sex on him. The complainant explained that he has crippling anxiety and just froze up.

[10] After about three or four minutes, L.B. got up onto his knees on the sofa, undid his pants and took out his penis. The complainant then yelled, said stop, and started crying.

[11] L.B. put his penis away and the complainant got up off the couch and put his clothes back on. As the complainant was leaving the apartment, L.B. gave him a joint and asked him not to tell anyone what had happened.

[12] When the complainant got home, his foster mom was very upset and screaming, asking where he had been. He did not recall disclosing what had happened to either his foster mom or the support worker at that point, but just went to his room, where he broke down and had a panic attack. Later that evening, the complainant’s uncle came to the foster home at the request of his foster mother. After some coaxing, the complainant told his uncle that he had been sexually assaulted. The police were contacted the next day and shortly thereafter the complainant provided a videotaped statement to the police.

[13] In addition to the viva voce testimony of four witnesses (namely, the complainant, B.H., the support worker from the foster home, and the complainant’s uncle), the Crown tendered evidence regarding prior sexual offences that L.B. had committed between 1981 and 2010, involving 10 boys who at the relevant time were similar in age to the complainant. L.B. had pleaded guilty to these offences in June 2013 and the Crown tendered transcripts of the plea proceeding, including the facts as accepted by L.B. This evidence was ruled admissible as similar fact evidence in a pre-trial application.

B. The Reasons of the Trial Judge

[14] After reviewing the Crown’s evidence and noting that L.B. did not testify or call any evidence, the trial judge observed that the defence theory was that the complainant fabricated the allegations of assault and sexual touching due to the fear of consequences he would suffer from arriving at the foster home after curfew and impaired by marijuana. Given the Crown’s burden, the issue for the trial judge was whether the evidence, or the lack of evidence, gave rise to a reasonable doubt as to whether L.B. had committed the offences alleged.

[15] The trial judge indicated that there was evidence that “to some extent” the complainant was concerned over the consequences of coming back to the foster home after curfew and impaired. He also pointed out that the complainant was a “solitary young person separated from his family and previous friends, in a new city, and a new foster home and a new school.” The complainant liked his foster mother and, according to the social worker, the consequences for soft drug use in the foster home might have been “grounding”.

[16] The trial judge also noted certain issues on which there was a lack of evidence. This included the complainant’s understanding at the material time of the consequences that would follow from his arriving home late and being impaired by marijuana. The trial judge also pointed out that the foster mother was not called as a witness to explain the consequences, if any, that she was likely to impose for similar infractions and “perhaps, most importantly, the impact, if any, of the complainant’s upset and revelations upon her i.e., the foster mother’s mindset.” The trial judge then expressed the view that “[i]t seems to me that a socially isolated young person might find even grounding a considerable issue.”

[17] The trial judge further found that the similar fact evidence adduced by the Crown was “not helpful”. He indicated that the pattern of behavior identified by the Crown, consisting of some touching over clothes and then proceeding to touch under clothing “is so generic as to be all but meaningless [since] most sexual encounters follow at least a similar course of action.” The trial judge distinguished the offences to which L.B. had previously pled guilty related to his wish to perform oral sex on young males, whereas the complainant “does not have male genitalia, a fact that would have become obvious earlier on.” In addition, the similar fact evidence did not reflect any “penetrating sex” on L.B.’s part.

[18] The trial judge concluded his reasons by indicating that, although the alleged assault “may well have taken place”, this was not a sufficient basis to find L.B. guilty. The trial judge found that the defence had raised a reasonable doubt, “moderately derived from the evidence and the lack thereof such that I cannot be sure of his guilt to the requisite degree.” He therefore acquitted L.B. of the offences alleged.

C. Grounds of Appeal

[19] The Crown alleges that the trial judge erred in two respects:

(i) in his assessment of the similar fact evidence, by both misapprehending and failing to consider the totality of that evidence; and

(ii) in assessing the complainant’s potential motivation to fabricate, by proceeding on the basis of speculation and generalized assumptions about expected behaviour that were not grounded in the record.

[20] The Crown submits that these errors had a material bearing on the acquittals since a properly instructed trier of fact, considering the entirety of the evidence, could have believed the complainant and convicted L.B. The Crown therefore asks that the acquittals be set aside, and a new trial ordered.

D. Analysis

[21] In our view, neither of the grounds of appeal advanced by the Crown discloses an error of law alone, and for this reason the Crown’s appeal should be dismissed.

[22] Considering first the Crown’s submission that the trial judge erred in his consideration of the similar fact evidence, the Crown argues that the trial judge improperly focused on the mechanics of the sexual touching by L.B. in these different incidents, rather than the totality of L.B.’s pattern of conduct. The Crown further submits that the trial judge erred in his statement that it “would have become obvious earlier on” that the complainant did not have male genitalia, since the complainant’s uncontradicted evidence was that he did not tell L.B. that he was transgender. Further, the trial judge’s reliance on the fact that the similar fact evidence did not reflect “any penetrative sex on the part of the accused”, ignored the fact that the complainant did not testify that any penetrative sex occurred in the present incident.

[23] We agree that a trial judge is required to consider all the evidence in relation to the ultimate issue of guilt or innocence, although “unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.”: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31; R. v. Morin, [1992] 3 S.C.R. 286, at p. 294.

[24] In this case, we see no basis for concluding that the trial judge failed to consider the totality of the similar fact evidence. Rather, he chose to highlight certain aspects of that evidence which, in his view, distinguished the circumstances in those earlier cases from the case before him. While we might have discounted the factors that were emphasized by the trial judge and relied on other factors in order to come to a different conclusion, that does not in itself constitute an error of law: J.M.H., at para. 29; Morin, at p. 295.

[25] The Crown is not entitled to appeal on the basis that the trial judge’s weighing of the similar fact evidence was unreasonable. We reject the argument that the trial judge’s approach to that evidence was based on the misapprehension of a legal principle. We therefore dismiss this ground of appeal.

[26] The Crown’s second ground of appeal is that the trial judge failed to assess the credibility or reliability of the complainant’s evidence based on the record, including his expressed denial of any motivation to fabricate the allegations. Instead, the trial judge referred to the complainant’s status as a “vulnerable” and “socially isolated young person” as a basis to question his credibility. The Crown points out that the Supreme Court of Canada has strongly criticized credibility findings based on stereotypical assumptions about ‘expected behaviour’ that are not grounded in the record.

[27] We agree that a finding on the ultimate issue of guilt or innocence based on stereotypical assumptions that are not properly grounded in the record would constitute an error of law. But we are not persuaded that this is what occurred in the present case.

[28] The trial judge identified certain parts of the record which, in his view, supported the fact that the complainant was concerned over the consequences of coming back to the foster home. Further, because an acquittal can be based not merely on the evidence but also the lack of evidence, he also placed considerable emphasis on the absence of evidence satisfying the Crown’s burden and overcoming the presumption of innocence. In particular, he observed that the Crown had failed to explore the complainant’s understanding of the negative consequences he would face upon returning to the foster home high on marijuana and after curfew, even after the defence theory in that regard was put to the complainant in cross-examination. In our view the trial judge did not commit the legal error of relying on assumptions that did not arise from the record.

[29] The Crown cannot appeal on the basis that the trial judge made a credibility assessment that was unreasonable. Once again, a different trial judge may well have come to a different conclusion in respect of this issue. But that is of no moment in a Crown appeal of an acquittal which, as we have emphasized, is available only on questions of law alone as per s. 676(1)(a)) of the Criminal Code.

[30] We therefore dismiss this ground of appeal.

E. Disposition

[31] The appeal is dismissed.

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”

“P.J. Monahan J.A.”