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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. B.A., 2011 ONCA 544
DATE: 20110802
DOCKET: C52853
COURT OF APPEAL FOR ONTARIO
Feldman, Blair and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
B.A.
Applicant/Appellant
Howard Rubel, for the appellant
Benita Wassenaar, for the respondent
Heard & released orally: July 27, 2011
On appeal from the conviction entered on July 16, 2010 by Justice C. Gilmore of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant seeks to set aside his conviction on a charge of touching the complainant for a sexual purpose, entered by Justice Gilmore of the Superior Court of Justice on July 16, 2010. He received a sentence of 12 months imprisonment.
[2] The appellant was a young high school teacher. The trial judge found that he and the complainant – then a 15-year old grade 10 student – carried on a sexual relationship between December 2006 and September 2007. Witnesses over the 23-day trial included the complainant, teachers, principals, students, police officers, the appellant’s common law spouse, his mother, and a handwriting expert. The appellant did not testify.
[3] The evidence also included a series of MSN chat logs/emails extending over a lengthy period of time, as well as notes exchanged between the appellant and the complainant during classes that he supervised at the school. The MSN messages and notes were salacious and graphic in their description of sexual activities between the two, both past and intended. One final MSN chat/email occurred after the disclosure of the relationship; in it the appellant pleads for the complainant to lie about the relationship to save him and his job and to tell people she made it all up. The complainant declined to do so. The trial judge accurately characterized this MSN chat as “darkly compelling”.
[4] Although he raised other issues on behalf of the appellant, Mr. Rubel’s principal argument was that the trial judge – having found that certain events could not have occurred as described by the complainant – failed to consider the impact of what he called “these falsehoods and impossibilities” on the overall credibility and reliability of the complainant’s evidence as a whole. This fed his further submissions that the trial judge misapprehended certain evidence and applied an uneven level of scrutiny to the assessment of the complainant’s testimony as compared to that of the defence witnesses, particularly, that of Ms. P. (the appellant’s common law spouse).
[5] We do not accept these submissions.
[6] The trial judge gave lengthy and thorough reasons, canvassing the pertinent evidence of all the witnesses in detail and considering and applying the applicable legal factors, including those surrounding the application of the W.D. principle. She was assiduously alive to the important inconsistencies and contradictions in relation to the complainant’s evidence and, as well, that of other witnesses, and addressed these issues directly.
[7] The trial judge accepted the evidence of the complainant where she found it to be confirmed by other independent evidence – particularly the MSN chats and notes referred to above, but rejected it when it did not accord with the objective evidence. In doing so, she found that certain events and incidents could not have, or did not occur as the complainant described them. In each circumstance, having done so, however, she explained why she was nonetheless accepting the complainant’s evidence that something of a sexual nature did happen. While there were arguments to be made to the contrary regarding these circumstances, the trial judge took a different view and the record supports her findings on the whole. We are not persuaded that she applied a different level of scrutiny to the evidence of the complainant and that of the defence witnesses, particularly that of Ms. P. She was entitled on the evidence to draw the inferences and to make the findings she did.
[8] On a reading of the trial judge’s reasons as a whole, we are quite satisfied that she was aware of the impact of her findings rejecting portions of the complainant’s testimony on the credibility and reliability of the complainant’s testimony overall, and that she applied the appropriate considerations in addressing and resolving the important credibility issues on which the trial turned.
[9] The existence of the MSN chats and the notes mentioned previously was established through evidence that was essentially independent of the complainant’s testimony. This evidence was simply overwhelming in support of the Crown’s case.
[10] The appellant was properly convicted, and the appeal is therefore dismissed.
“K. Feldman J.A.”
“R.A. Blair J.A.”
“David Watt J.A.”