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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

CITATION: R. v. S.H., 2011 ONCA 215

DATE: 20110321

DOCKET: C52893

COURT OF APPEAL FOR ONTARIO

Sharpe, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. H.

Appellant

Howard C. Rubel, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 17, 2011

On appeal from the decision of Justice Cary C. Boswell of the Superior Court of Justice dated March 8, 2010, reported at 2010 ONSC 1635.

BY THE COURT:

[1] The offences the appellant was convicted of were historical – occurring between 1973 and 1995 – and were committed in a domestic context. The appellant was 55 years old at the time of trial. There were four complainants; two former wives and two daughters. The appellant was charged with a total of thirteen offences, which included assault, sexual assault, sexual touching, gross indecency, weapons dangerous and uttering a death threat.

[2] The charges against his first born daughter relate to incidents that took place when she was between 11 and 13 years old. She was 34 years old at the time of trial. Charges against his second born daughter involved a pellet gun and occurred when she was 15 years old. She was 31 at the time of trial.

[3] After a five day trial, the trial judge found the appellant guilty only of counts 4, 5, 7, 8, 9, 11 and 12, and convictions were entered. The trial judge sentenced him to a total period of imprisonment of four years and three months.

[4] The appellant appeals against his convictions for counts 4, 5, 8, 9 and 11. They are in connection with various offences against each of the four complainants. He does not appeal against his conviction on counts 7 and 12, being two of the offences he committed against his second born daughter. He also seeks leave to appeal his sentence.

Grounds of appeal

[5] The appellant’s principal ground of appeal is in connection with the evidence of his first daughter. He argues that the trial judge’s failure to resolve her earlier recantation of her allegations amounted to an error. In his view, resolution of this issue had to have resulted in either the complete rejection of her evidence as being incredible, or at least raise a reasonable doubt.

[6] The appellant further submits that the trial judge then fell into further error by relying on the first daughter’s evidence to support the testimony of other complainants. This, he says, resulted in a number of critical errors. He contends that such errors include: (i) a misapprehension of evidence; or (ii) a reversal of the burden of proof; or (iii) an unreasonable verdict. We reject each of the appellant’s submissions.

Discussion

[7] The trial judge correctly summarized the case before him as:

… a case where the witnesses testified about incidents that occurred long ago. Their recollections were incomplete. There was little to corroborate the oral testimony of the principle parties. Credibility is obviously a central issue, as is reliability.

[8] As the trial judge noted on several occasions in his reasons; he was entitled to believe all, some or none of a witness’s evidence. He then conducted a thorough review of the evidence and considered both the credibility of the witnesses as well as the reliability of their evidence. He correctly observed the difference between a witness’s credibility and the reliability of their evidence.

[9] The trial judge then went on and correctly recited and applied the W.(D.)[^1] analysis that was required by law in the circumstances of this case. He found that he did not believe the appellant, nor was he left with a reasonable doubt as a result of his evidence. No error was committed in his approach or analysis, and specifically, he did not reverse the onus of proof.

[10] In his analysis of the witnesses, the trial judge considered such factors as the potential impact of the passage of time; the possibility of the witness’s testimony being coloured by discussions between them; and any confirmatory, or lack of confirmatory evidence that might impact on the evidence. He gave thorough reasons why he believed a witness and why their evidence was either reliable or unreliable and he was clear on how much of their testimony he accepted. He did not misapprehend any of the evidence.

[11] Finally, regarding his principal argument, the appellant submits that the trial judge erred in not resolving the recantation issue of the first daughter. In this regard, the appellant notes that the defence evidence called at trial given by the sister of the appellant was directly contrary to the evidence of the first daughter. That is, contrary to the daughter’s testimony, the sister’s evidence was that in 1989 she did not persuade the daughter to recant criminal allegations she had made against her father. The trial judge held that he was unable to say whether the sister had done so but that he did not need to resolve this issue.

[12] The appellant’s argument here is that the trial judge specifically raised an issue necessary for him to resolve when he said: “if I were to find that [the daughter] was lying about [the sister’s] involvement, then I might have concerns about her credibility on the whole”. Furthermore, he notes that the trial judge did not reject the sister’s evidence. Thus, he says, a decision that the daughter lied about why she recanted should result in a total rejection of her evidence, or at the least raise a reasonable doubt. We reject this argument.

[13] In our view, and in all the circumstances of this case, the trial judge was correct in holding that the stated reasons for the witness’s recantation did not require resolution. The daughter’s reasons or motive for having recanted her allegations against the appellant in this trial were only relevant to her credibility. Indeed, as defence counsel at trial submitted to the trial judge: “[A]ll I intended with this witness [the appellant’s sister] was for her to counter [the daughter’s] evidence that she instructed her to change her statement”.

[14] A trial judge does not have to resolve every discrete factual issue bearing on a witness’s credibility and is entitled to assess the evidence as a whole. In our view, the daughter’s evidence and credibility were properly assessed by the trial judge. In doing so he factored in the fact of the daughter’s recantation as well as other evidence, including his finding that the appellant had confessed to having assaulted the daughter sexually while he was in hospital recovering from a near-fatal accident. There was no error in either the trial judge’s approach or his conclusion.

[15] For these reasons, the appeal against his convictions is dismissed.

Sentence

[16] The trial judge reviewed the principles of sentencing under s. 718 of the Criminal Code. He considered and applied the correct principles and fully explained his reasons for doing so. The trial judge was completely aware of the appellant’s age and his serious medical condition; that the offences occurred years earlier; and that he was essentially a first time offender. Moreover, it is clear to us that the principle of totality guided the trial judge’s ultimate decision.

[17] This court has repeatedly held that absent exceptional circumstances, adult offenders in a position of trust who sexually abuse children over a substantial period of time can expect to receive mid to upper single digit penitentiary terms: see R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) at 484. There are no exceptional circumstances in this case.

[18] The sentence imposed by the trial judge in this case is entitled to considerable deference. The appellant has failed to demonstrate that intervention by this court is warranted. That is, he has failed to show that the trial judge committed an error in principle, or failed to consider a relevant factor, or that he placed an inappropriate emphasis on applicable factors. Finally, we disagree that the sentence of four years and three months, in all the circumstances of this case, is a sentence that is demonstrably unfit.

[19] Accordingly, while leave to appeal his sentence is granted, the appeal is dismissed.

RELEASED:

“RJS” “Robert Sharpe J.A.”

“MAR 21 2011” “J. MacFarland J.A.”

“H.S. LaForme J.A.”

[^1]: R. v. W.(D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397.