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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. D.T.G., 2011 ONCA 40

DATE: 20110118

DOCKET: C48140 C49269

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN C48140

Her Majesty the Queen

Appellant

And

D. T. G.

Respondent

AND BETWEEN C49269

Her Majesty the Queen

Respondent

And

D. T. G.

Appellant

Philip Campbell and Michael Dineen, for the appellant (on conviction)/respondent (on sentence)

John McInnes and Chris Dwornikiewicz, for the Crown respondent (on conviction)/ appellant (on sentence)

Heard: November 12, 2010

On appeal from the convictions entered by Justice Frances P. Kiteley of the Superior Court of Justice dated March 13, 2007 and the sentence imposed by Justice Kiteley on November 28, 2007.

MacFarland J.A.:

OVERVIEW

[1] This is an appeal by the accused from the judgment of Kiteley J. who entered convictions on five counts of indecent assault; one count of threatening death; two counts of assault causing bodily harm; one count of sexual intercourse with a person under 14 and one count of assault with a weapon. The Crown appeals the sentence imposed by the trial judge.

[2] The charges against the appellant relate to historical physical and sexual abuse alleged to have been perpetrated on two of his four step-daughters, V. and B. The complainants testified that the appellant regularly beat them between 1969 and 1977. They also testified that he forced them to engage in sexual activities including fondling, oral sex and, in the case of the younger complainant, full sexual intercourse. The older step-daughter, V., also testified that she and her sister had been forced to perform sexual acts on each other; the younger step-daughter B. testified to no such events and said that she had not been aware that her sibling had also been molested. The appellant testified and denied all allegations. The appellant submits that the trial judge erred in her approach to the assessment of credibility and raises three grounds of appeal:

1. The trial judge erred in finding the appellant’s evidence unreliable for speculative and unfounded reasons;

2. The trial judge erred in finding the appellant’s evidence incredible because he had a motive to lie; and

3. The trial judge erred in failing to appreciate a major inconsistency between the complainants.

[3] For the reasons that follow, I am of the view that the conviction appeal must be allowed and a new trial ordered. Accordingly, it is unnecessary to deal with the sentence appeal.

THE FACTS

[4] The appellant was born in Newfoundland on December 11, 1945. In 1968, he moved to Ontario where he met B.L., the mother of the complainants. B.L. had also recently moved to Ontario from Newfoundland with her husband and four daughters. She and her husband separated in 1969 and she subsequently began a relationship with the appellant. V. and B. are B.L.’s second and third daughters; they were seven and six years of age, respectively, when B.L. moved in with the appellant. The appellant and B.L. soon had a son together. The family lived in Toronto for three years, then moved to Kitchener where they lived for a couple of years. In 1974, they returned to Toronto. In 1977, the appellant and B.L. separated when the appellant moved to Alberta, where he eventually got married and had a daughter.

V.’s Evidence

[5] V. testified that the appellant began to sexually abuse her when she was about seven years of age. She described the first incident of abuse in the family’s kitchen at their home in Toronto and of specific incidents that occurred when they lived in Kitchener. She recalled an incident when she was sick in bed with the mumps and the appellant brought her jello and then fondled her. She also spoke of occasions when the family would go swimming in Kitchener and the appellant would make her rub his penis and he would fondle her inside her bathing suit. She spoke of him coming into her bedroom at night, fondling her and placing his penis in her mouth. She also spoke of an occasion when the family was driving back from Kitchener in a station wagon and the appellant climbed into the back where V. was lying under blankets and fondled her there. She testified to the appellant’s verbal and physical abuse throughout his relationship with B.L. According to V., the appellant beat B.L. and spanked V. regularly, often using shoes or belts.

[6] V. also testified about occasions when she and B. were forced to perform oral sex on the appellant together. They were also required to perform oral sex on each other and to use a vibrator on each other. She recalled a specific incident when the appellant was speaking to her mother on the phone, telling her everything was fine, while V. and B. performed oral sex on him. According to her, she did not tell her mother about the sexual abuse because the appellant had told her that if she did, her mother would no longer love her. Although V. testified that she had disclosed the abuse to her husband years earlier, neither he nor anyone else testified that either complainant had disclosed these matters before 2000.

B.’s Evidence

[7] B. spoke of similar abuse. She said the appellant spanked her almost every night and often used a belt. He would belittle her and call her stupid. He regularly beat her mother. She said the appellant fondled her and forced her to perform oral sex on him, telling her that this was what fathers did to their little girls to prepare them for their future husbands. B. testified that the appellant started having intercourse with her when she was eleven or twelve years of age. According to her, she would go over weekly to the appellant’s new apartment in Toronto and have intercourse or oral sex with him until he moved to Alberta when she was thirteen or fourteen years old. In her evidence, B. clearly stated that she was not aware of any sexual abuse perpetrated on her siblings during this period.

[8] B. had been addicted to cocaine and other drugs for years. It was during a relapse following her release from a rehabilitation program that she first told her mother of the abuse in an effort to explain why she had personal problems. She went to the police in 2004. V. only decided to give police a statement after B. had done so; she described her testimony as “standing by” her sister.

B.L.’s Evidence

[9] B.L., the complainants’ mother, testified for the Crown. She said the appellant was physically abusive to her. Her evidence was that he disciplined the children by yelling at them and grounding them. If she intervened, he would beat her. She had no awareness of any of the physical or sexual abuse that her daughters claimed to have suffered. She gave no evidence of ever having noticed injuries or any other sign of abuse.

The Appellant’s Evidence

[10] The appellant denied all sexual interaction with either V. or B. He denied being regularly violent with his wife or her children but he admitted that he may have shouted at them or struck at them with his hand for occasional discipline, but never with belts or other objects. He acknowledged that he and B.L. argued, particularly near the end of their relationship and when they had been drinking. In relation to his drinking, the appellant was asked by the Crown:

Q. And did you have a problem with alcohol, and do you have a problem with alcohol?

A. No, I don’t, ma’am.

Q. I’m going to suggest to you that [B.L.] really isn’t much of a drinker.

A. She partied enough with me and our friends.

Q. She was a social drinker

A. I was a social drinker also. Okay, I got drunk every now and then on a weekend or whenever the case. It’s just we drank too much. You don’t realize it at the time. Yes, and I partied. She partied with me. We went camping. We drank, the whole lot of us, our friends and everyone. There’s nights we got drunk. There’s other nights we didn’t.

[11] B.L. described the appellant as a controlling man and as being physically abusive toward her but she was not asked directly about the appellant’s alcohol consumption. The appellant testified that he was a different person now (at trial) than he had been thirty years earlier – he had quit drinking, changed his lifestyle and “dumped his anger”.

[12] Following his move to Alberta, the appellant continued to have contact with the complainants. Many cards and letters sent to him by both complainants were put into evidence. V. said she continued to send cards because she still saw the appellant as a father figure. B. claimed she remained in contact because the appellant continued to threaten to kill her mother. Both complainants visited the appellant in Alberta after his move there. Contact appears to have stopped in 1994, the year the appellant’s wife died of cancer.

ANALYSIS

[13] The Crown conceded in its closing submissions that this case was a close call. This was a case of two uncorroborated accounts from two complainants and a broad denial by the appellant of any abuse. In dealing with the evidence of the complainants, the trial judge found aspects of the evidence of both V. and B. problematic. The case was not an overwhelming one for the Crown.

[14] The appellant’s evidence is dealt with at paras. 78 through 83 of the trial judge’s reasons for judgment. She briefly reviewed some aspects of the appellant’s evidence and concluded:

[82] Given his concession that he might have hollered at the children and might have smacked them for discipline, I find that the anger that he admits was part of his personality affected his perception of the events at the time. Perhaps because of his alleged transformation he minimizes the profound effect he had on the lives of [B.L.] and [V.] and [B.].

[83] Even on his evidence he drank alcohol frequently and excessively. That too may have had an effect on his memory. He has a motive to minimize what he did do and deny any behaviour that might attract criminal liability. It may be that his memory is sufficiently impaired by alcohol, by the passage of time, and by his asserted transformation that he does not remember the events that form the basis of the allegations. I do not find his evidence credible and reliable. I do not accept his evidence. His evidence does not raise a reasonable doubt.

[15] There are a number of problems with this reasoning, the first and most obvious being that the reasons are conclusory. There is no analysis of the evidence. Further, the basis upon which the appellant’s evidence is rejected is speculative at best. The trial judge found that the appellant’s anger had affected his perception of past events without any evidence whatsoever to support that conclusion. The appellant was not cross-examined about whether or not his anger may have affected his perception of past events nor was any expert or other evidence called on the point. In addition, the trial judge speculated that “perhaps” because of the appellant’s alleged transformation, he minimized the effect he had on the lives of the complainants and their mother. Once again, there is no basis in the evidence to support such a conclusion. Similarly, the trial judge speculated that the appellant’s consumption of alcohol “may” have affected his memory – again without any support in the evidence to support such a conclusion.

[16] Equally problematic is the trial judge’s statement: “He has a motive to minimize what he did do and deny any behaviour that might attract criminal liability.” This court considered a similar comment in R. v. L.B. (1993), 1993 8508 (ON CA), 82 C.C.C. (3d) 189, at p. 190:

It is only necessary to consider one of the two grounds of appeal. The appellant submits that the trial judge erred in attributing to him a motive to lie, as a reason for disbelieving his evidence.

When he came to consider the evidence of the appellant, the trial judge said: “The accused, of course, has a motive for not telling the truth, he does not wish to be convicted.”

The appellant submits that this was an error as it displaced entirely the presumption of innocence and presupposed the guilt of the appellant. I agree.

[17] In my view, the trial judge’s comment in this case about the appellant’s motive falls into the category of impermissible reasoning outlined in L.B. – that in effect, the appellant will lie to avoid criminal liability. Such a comment displaces the presumption of innocence and in the language of L.B., at p. 191, “goes beyond the permissible consideration of the accused’s interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal”.

[18] The final ground of appeal relates to the significant contradiction in the evidence of the complainants. V. testified that the appellant forced her and B. to perform oral sex on him and on each other, with and without a vibrator. B. testified that she had been unaware until her adulthood that V. too had suffered sexual abuse at the hands of the appellant. The trial judge dealt with this serious contradiction at para. 100 of her reasons:

It is the case that [B.] did not give evidence about being forced to participate in sexual acts with her sister at the family residence or at [the appellant’s] apartment. But she was never asked that question specifically in cross-examination and [the Crown] could not cross-examine on that point. I have accepted [V.’s] evidence on that point. I draw no negative inferences that [B.] did not speak on the same issue.

[19] In my view, the trial judge had to do more in dealing with this significant inconsistency in the complainants’ evidence. It is not enough to simply say that the defence did not ask a specific question in relation to this evidence and that the Crown could not cross-examine on the issue. This was a serious conflict in the evidence. It was the Crown’s problem. A trial judge is not required to expressly deal with every inconsistency in the evidence. However, as Binnie J. noted in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55:

Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue…

[20] In my view, the trial judge’s reasons here do nothing to resolve this contradictory evidence on a key issue. This was not an insignificant conflict in the evidence. The trial judge had a duty to address this inconsistency and failed to do so.

[21] For the foregoing reasons, I am of the view that the appeal must be allowed, the convictions set aside and a new trial ordered.

[22] In view of this result on the conviction appeal, it is neither necessary nor appropriate to deal with the Crown’s sentence appeal.

RELEASED: January 18, 2011 “DOC”

“J. MacFarland J.A.”

“I agree Dennis O’Connor A.C.J.O.”

“I agree David Watt J.A.”