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. 486.4(1), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

R v JL, 2009 ONCA 788

DATE: 20091110

DOCKET: C49125

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

V. Rondinelli, for the appellant

Susan Magotiaux, for the respondent

Heard and orally released: November 3, 2009

On appeal from the conviction entered by Justice Nicklas of the Ontario Court of Justice dated Apri1 1, 2008 and the sentence imposed on July 23, 2008.

ENDORSEMENT

[1] The appellant was convicted of sexually assaulting the two young daughters of his long-term partner. T.R.1, one of the complainants, testified that she was repeatedly sexually assaulted several times a week between 1999 and 2006. She was about seven when the assaults began. T.R.1 testified that she was forced to perform and was subjected to oral sex. She claimed that she said nothing because the appellant threatened her, her mother and her dog. The second complainant, T.R.2, T.R.1’s younger sister, testified that she was assaulted over several weeks between June and August of 2006. She indicated that the appellant touched her breasts, vagina and posterior sometimes over her clothing and sometimes under it. T.R.2 was eleven when these events occurred. The assault eventually stopped when the appellant, the complainants and their mother moved to Nova Scotia.

[2] The mother of the complainants also testified. She described her relationship with the appellant, the appellant’s relationship with her daughters and the disclosures that were eventually made by her daughters. The appellant testified and denied in detail the allegations made against him.

[3] As is common in these cases, credibility was the key issue. There were many factual issues raised in the course of the evidence that posed difficult credibility problems for the trial judge. She delivered lengthy reasons that display a full appreciation of the details of the evidence and the arguments pertaining to the credibility of the key witnesses.

[4] Counsel for the appellant submits that the trial judge improperly “pooled” her credibility assessment of the two complainants and the appellant in finding each complainant credible and the appellant incredible. Counsel submits that as there was no finding that the evidence of one complainant was admissible on the counts involving the other, the trial judge’s assessment of the reliability of one complainant’s evidence could not be used to buttress the credibility of the other. He further submits that in assessing the credibility of the appellant, the trial judge had to examine the appellant’s evidence as it related to each complainant separately.

[5] The reasons for judgment belie counsel’s submission that the trial judge considered the evidence of the complainants together. The trial judge made an exhaustive and independent review and assessment of the credibility of the two complainants. She found each credible based on that independent assessment. The trial judge’s brief descriptive comparison of the demeanour of the two complainants in the witness stand does not suggest any improper use of the evidence of one to bolster the credibility of the evidence of the other.

[6] The appellant’s submission that the trial judge did not properly consider the appellant’s evidence as it related to the allegations of each complainant separately arises out of the trial judge’s approach to the first of the three stages of the reasonable doubt inquiry described in R. v. W.D. At that stage, the trial judge had to decide whether she believed the appellant’s evidence. To the extent that she believed any part of his evidence which negated any essential element of the offence, the appellant was entitled to an acquittal on that charge.

[7] At this first stage of the W.D. analysis, the trial judge examined the totality of the appellant’s evidence without distinguishing the parts of his evidence which related to the allegations of one complainant from those parts that related to the allegations of the other. The trial judge enumerated several reasons for ultimately disbelieving virtually the entirety of the appellant’s evidence. Some of those reasons related to allegations from one complainant or the other and some related to allegations from both.

[8] We are satisfied that in considering the credibility of the appellant’s evidence at this first stage of the W.D. inquiry, the trial judge was entitled to take into account the totality of the appellant’s evidence. As Charron J. recently observed in R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111 at para. 25, a trier of fact’s assessment of the overall credibility of a witness’ evidence is bound to be influenced by the totality of the evidence heard by the trier of fact. We do not think that the trial judge was obliged in law, nor could the trial judge realistically make two discrete, distinct and independent assessments of the appellant’s credibility, one having regard to the evidence as it related to one complainant and a second having regard to the evidence as it related to the other complainant.

[9] Ultimately, at the first stage of the W.D. inquiry, the trial judge must decide the credibility of an accused’s evidence as it relates to the individual charges. In doing so, however, the trial judge is entitled to examine the entirety of the appellant’s evidence in arriving at his or her credibility assessments. We see no error in the trial judge’s approach to the appellant’s evidence.

[10] The second submission advanced by counsel is based on the oft repeated claim that the trial judge applied a different level of scrutiny to the appellant’s evidence than to the evidence of the complainants. Our review of the trial judge’s reasons does not support that contention. She carefully scrutinized the evidence of the appellant and the complainants. She articulated several reasons for her ultimate findings both in regard to the evidence of the appellant and the evidence of the complainants. The trial judge acknowledged that some of the reasons for her findings were more significant than others. Indeed, some of the factors referred to by the trial judge might be regarded as minor or even insignificant. That was ultimately, however, her decision to make and it is not for this court to review the evidence de novo and decide what it thinks is important or unimportant. We cannot say that her methodology was wrong or that the result it yielded was unreasonable. The appeal from conviction is dismissed.

[11] The appellant also appeals sentence. The appellant received a five-year sentence in respect to very serious sexual assaults against T.R.1 and a one-year consecutive sentence for the assaults on T.R.2.

[12] The total sentence imposed falls within the range identified by this court in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471. The comprehensive reasons for sentence provide a full and compelling explanation for the sentence imposed by the trial judge. We see no error in principle and do not regard it as manifestly unreasonable. The appeal from sentence is also dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“Susan E. Lang J.A.”