W A R N I N G
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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. Dobson, 2009 ONCA 714
DATE: 20091009
DOCKET: C47113
COURT OF APPEAL FOR ONTARIO
Moldaver, Simmons and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Michael Dobson
Appellant/Applicant
Mark Halfyard, for the appellant
Greg Skerkowski, for the respondent
Heard and released orally: October 1, 2009
On appeal from conviction by Justice Arthur Gans of the Superior Court of Justice, sitting without a jury, dated March 21, 2007.
ENDORSEMENT
[1] Following his trial in the Superior Court of Justice before Gans J, without a jury, the appellant was convicted of four counts of sexual interference. Two other charges - invitation to sexual touching and sexual assault – were stayed in accordance with the rule against multiple convictions.
[2] The appellant was sentenced to imprisonment for six months concurrent on two counts. On the other two counts, he received a conditional sentence of twelve months concurrent but consecutive to the six-month term of imprisonment. He appeals only against conviction.
[3] The charges date back to 2001 and 2002 and involve allegations that from December 2001 to and including April 2002, the appellant engaged in repeated acts of sexual touching – including oral sex and full intercourse – with the complainant who, to the knowledge of the appellant, was then 13 years old. Given the complainant’s age, consent was not an issue, even though, as the trial judge found, the complainant willingly participated in the alleged activity with the appellant who was then age 32.
[4] The sole issue at trial was whether the alleged acts of sexual interference occurred. The complainant claimed that they did and the appellant denied them. The trial judge accepted the evidence of the complainant and found that the evidence of the appellant did not raise a reasonable doubt. The appellant submits that in assessing credibility, the trial judge committed two errors.
[5] First, he submits that the trial judge misapplied this court’s decision in R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347, by reversing the burden to proof and placing an onus on the defence to demonstrate that inconsistencies in the evidence of a child witness must be “major” before their potential impact on credibility need be considered.
[6] We would not give effect to this ground. While the trial judge may have used some imprecise language during oral argument, his reasons make it clear that in all matters, including credibility, he recognized that the onus remained on the Crown throughout and it never shifted. His reasons are likewise clear that in determining that the various inconsistencies relied upon by the defence did not “amount to major inconsistencies”, the trial judge was primarily referring to details as to “time and space” which, having regard to the complainant’s young age, he characterized as “minor” or “peripheral” – the kind of inconsistencies that are expected of a child witness and which in his view did not affect the complainant’s credibility.
[7] In sum, when the reasons are read fairly as a whole, we reject the appellant’s submission that the trial judge misinterpreted R. v. G.(M.) to mean that “minor” inconsistencies can never be used, either alone or in conjunction with other evidence, to raise a reasonable doubt. As the following passage from his reasons indicates, the trial judge considered all of the inconsistencies in the complainant’s evidence, both alone and in conjunction with the other evidence, in arriving at his decision:
In the first place, I am not persuaded that the “time and space” constraints urged upon me by the defence give rise to a reasonable doubt alone or in combination with the other evidence.
[8] Second, the appellant submits that the trial judge failed to consider significant inconsistencies between the complainant’s evidence and that of Keith Cameron, a witness called by the defence. In particular, the appellant maintains that it was essential for the trial judge to resolve a black and white conflict in their testimony wherein the complainant claimed that Cameron walked in on her and the appellant in the upstairs bedroom of Cameron’s house after she and the appellant had had sex, showered and got dressed and Cameron claimed that no such event ever occurred. In line with this, the appellant submits that the trial judge also failed to consider the significance of Cameron’s evidence that the appellant did not have a key to Cameron’s house and was never there alone.
[9] We reject those submissions. The trial judge gave cogent reasons for rejecting the material aspects of Cameron’s testimony. In short, he found that Cameron’s evidence was inconsistent in material respects with the evidence of the appellant and his mother. Moreover, he rejected as unreliable Cameron’s evidence as to the number of times the appellant stayed at his home and the place where he slept when he was there. In this regard, the trial judge found that Cameron’s recollection on these matters “was in error and for good reason having regard to the passage of time (approximately five years) and the fact that Cameron was only recently contacted to testify for the defence.”
[10] Having concluded that Cameron was an unreliable historian on these matters, the fact that he denied seeing the appellant and the complainant in the upstairs bedroom fully clothed took on far less significance. In short, the inconsistency in question was not a matter of such pressing importance that it required resolution and as this court has stated on numerous occasions, it is not incumbent on trial judges to address, much less resolve, every inconsistency that may arise on evidence.
[11] The appellant raises a third ground of appeal in which he submits that the conduct of the trial judge rendered the trial unfair. In particular, he contends that the trial judge made derogatory remarks about the conduct of defence counsel, undercut defence counsel’s questioning of the witnesses, and made some off-colour comments that “cumulatively undermined the appearance of fairness and created the appearance of bias”. In support of this submission, the appellant has set out in Appendix “A” of his factum over a dozen examples of the kind of conduct about which he complains.
[12] We find it unnecessary to address the various complaints on an item by item basis. Suffice it to say that the trial judge exhibited impatience at times and some of his comments should not have been made and others were ill chosen and could have been phrased in a more courteous, less abrasive fashion. In addition, he should not have instructed defence counsel that he could not make further objections. However, as the record shows, the impugned instruction did not deter counsel.
[13] Considered as a whole, however, we are not persuaded that the trial judge’s interference deprived the appellant of his right to a fair trial. The appellant concedes that there was no actual prejudice or unfairness. We agree.
[14] Before leaving this subject, we consider it worth stating that while trial judges bear responsibility for ensuring that the trial proceeds in an orderly and efficient fashion and are entitled to be firm in carrying out this function, it is essential that, in doing so, they maintain judicial decorum.
[15] In the circumstances, we would not give effect to this ground of appeal.
[16] Accordingly, the appeal from conviction is dismissed.
Signed: “M.J. Moldaver J.A.”
“Janet Simmons J.A.”
“R. G. Juriansz J.A.”