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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.B., 2012 ONCA 301

DATE: 20120509

DOCKET: C52034

Doherty, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.

Appellant

Michael W. Lacy, for the appellant

Randy Schwartz, for the respondent

Heard: March 15, 2012

On appeal from the conviction entered on February 10, 2010 by Justice O’Neill of the Superior Court of Justice, sitting without a jury.

Doherty J.A.:

I

[1] The appellant was convicted of one count of sexual assault and one count of sexual interference. He appeals his convictions.

[2] Both charges involve S.P., the thirteen year-old daughter of the appellant’s niece. S.P. alleged that over the summer months of 2007 the appellant touched her in a sexually inappropriate way on several occasions. She described four occasions in some detail. S.P. also alleged that on August 11, 2007, when she and the appellant had gone for a ride into the bush area near his cottage, the appellant performed oral sex on her. The August 11 allegation was the focus of the trial. The Crown conceded that if the trial judge had a reasonable doubt about the August 11 allegation, he should acquit on both charges.

[3] The appellant testified and denied all of the allegations.

II

THE EVENTS OF AUGUST 11

[4] The appellant and his wife hosted a birthday party for two young relatives at their cottage outside of Timmins. S.P.’s family had a camper trailer nearby and attended the weekend festivities. A number of other relatives were also at the cottage that weekend.

[5] S.P. testified that between 5:00 p.m. and 6:00 p.m. on August 11, she and the appellant had gone for a ride into the bush near his cottage. She was on her new motorbike and he was on an ATV. During their ride, S.P.’s motorbike repeatedly stalled, and the appellant would stop and restart it. During one such stop, the appellant urinated in S.P.’s presence and then told her he wanted to perform oral sex on her. S.P. pulled down her pants and her bikini bottoms and sat on the appellant’s ATV. He began to perform oral sex. While he was doing so, S.P. heard a noise nearby and quickly pulled up her pants. Mr. Moore, a neighbour, and his wife and their dog emerged from the bush a few seconds later. Mr. Moore asked if the appellant and S.P. needed any help and commented on the new bike.

[6] Mr. Moore testified and recalled the encounter in the bush. While counsel for the appellant did not question Mr. Moore’s honesty, he did question his recollection as to the time and location of the encounter. Mr. Moore was not asked about this event until over a year after it had allegedly occurred.

[7] The appellant denied any sexual impropriety. He testified that he had been alone with S.P. on two occasions on August 11, 2007. The first occurred in the morning. S.P. showed up at the cottage with her new motorbike and asked the appellant to go for a ride. Although he initially declined to do so, when she returned shortly thereafter, he relented and they went for a brief ride to the end of the road. They did not go into the bush. The appellant testified that they encountered Mr. Moore on the road. S.P. denied going for a ride with the appellant in the morning of August 11, although she did acknowledge that she had gone to his cottage that morning to show him her new motorbike.

[8] The appellant testified that he was also alone with S.P. at about 6:00 p.m. that evening. He had driven her back to her camper so that she could get her diabetes medicine.

[9] S.P. testified that the appellant had driven her back to her camper so that she could get a catheter she needed for her diabetes injections, but that this had occurred at around 3:00 p.m., a couple of hours before the trip into the bush.

[10] In addition to the evidence given by S.P. and the appellant about their encounters on August 11, the trial judge heard a great deal of evidence from other witnesses about the details of the events as they unfolded at the appellant’s cottage. Most of the witnesses, except Mr. Moore, were part of the extended family. It was apparent that some of the family members believed in the appellant’s innocence and supported his position while others believed S.P. and supported her allegations. Much of their evidence was about who was with whom, at what time, and where, on August 11.

III

THE GROUNDS OF APPEAL

[11] The appellant raises three grounds of appeal:

• Did the trial judge err in admitting the evidence of J.C., S.P.’s aunt?

• Did the trial judge misapprehend the evidence relating to various photographs entered as exhibits at trial?

• Did the trial judge err in excluding the appellant from the trial during his cross-examination by the Crown and, if so, has the Crown demonstrated that the appellant was not prejudiced by that exclusion?

[12] Only the first ground of appeal requires detailed analysis. I will address the second and third briefly.

The Photographic Evidence

[13] A number of time-stamped photographs were taken of S.P. and the others at the cottage in the late afternoon of August 11. Several were taken between about 4:15 p.m. and 5:01 p.m. The trial judge found that these photographs confirmed part of S.P.’s evidence, particularly her evidence that she put her long pants on over her bikini bottoms immediately before she and the appellant set out on their ride into the bush at about 5:00 p.m. As noted above, the appellant had acknowledged being with S.P., but placed this time at about 6:00 p.m., indicating that he was taking her back to her camper to get her diabetes medication. Significantly, the appellant testified that S.P. was in her bikini when he took her back to the camper at this time. The photographs tended to undermine that part of the appellant’s evidence.

[14] I see no misapprehension of the photographic evidence by the trial judge. It is not necessarily a misapprehension if the trial judge does not give the evidence the meaning urged by one side or the other.

[15] Counsel for the appellant further submitted that because one of the photographs could support the inference that S.P. was in the water after 4:00 p.m., the trial judge failed to appreciate that this photograph was inconsistent with S.P.’s evidence that she had lost her catheter in the water sometime around 2:00 p.m. Counsel submitted that the photograph was consistent with S.P. having been in the water after 4:00 p.m. and having lost her catheter at that time. If she lost her catheter in the water shortly after 4:00 p.m., the appellant’s evidence that they travelled to her camper to retrieve the “diabetes medicine” at around 6:00 p.m. was made more credible.

[16] I agree with Crown counsel’s submissions that evidence that S.P. was in the water shortly after 4:00 p.m. is not inconsistent with her evidence that she was in the water a couple of hours earlier and had lost her catheter at that time. S.P.’s evidence, and the evidence of other witnesses, suggested that S.P. and the other children were in and out of the water all day long. It is not speculation, but fair inference to conclude that she may well have gone back into the water after returning to the cottage with her new catheter. The trial judge did not misapprehend or fail to appreciate this part of the evidence.

The Exclusion of the Appellant from the Courtroom

[17] The appellant was excluded from the courtroom during his cross-examination by the Crown while counsel made submissions about certain questions the Crown proposed to put to the appellant. After the appellant returned to the courtroom, he was asked a few questions relating to the subject matter that had precipitated the objection leading to his exclusion. The questions and answers were inconsequential to the result at trial. The Crown later brought this improper exclusion to the attention of the court. Defence counsel did not seek a mistrial or any other remedy.

[18] The Crown concedes that the appellant should not have been asked to leave the courtroom during his cross-examination. His exclusion clearly contravenes s. 650(1) of the Criminal Code. His exclusion is fatal unless the Crown can demonstrate that the appellant suffered no prejudice because of his exclusion: see Criminal Code, s. 686(1)(b)(iv).

[19] This court examined the principles governing the application of the s. 686(1)(b)(iv) at length in R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337. I am satisfied that an application of the principles identified in R. v. E. (F.E.) compels the conclusion that the appellant was not in any way prejudiced by his relatively brief absence from the courtroom during the trial. I would apply the proviso.

J.C.’s Evidence

[20] J.C. is the mother of one of the young boys who was celebrating a birthday on August 11, 2007. Her aunt is married to the appellant and her sister is S.P.’s mother.

[21] J.C. arrived at the cottage, on foot from the family’s nearby camp, at around 2:00 p.m. on August 11. En route, she had seen S.P. and the appellant on a motorized vehicle. S.P. told J.C. that she needed to retrieve a piece for her insulin pump. The defence did not challenge the admissibility of this part of J.C.’s evidence. J.C.’s evidence on this point was consistent with S.P.’s and inconsistent with the appellant’s.

[22] The defence did, however, object to J.C.’s evidence concerning two other incidents on that day. That objection was made before the Crown led the evidence. The trial judge, at Crown counsel’s urging, decided to hear the evidence before determining its ultimate admissibility.

[23] The first incident occurred sometime in the afternoon of August 11 before 5:00 p.m. J.C. testified that she was sitting at the picnic table and the appellant came over to her and began to speak with her. He rubbed her arm and asked her how she was doing. The appellant’s wife saw this and asked “what are you doing Daddio?” She looked upset. This made J.C. uncomfortable, so she got up and walked away.

[24] The second incident occurred sometime after 6:00 p.m. but before 8:00 p.m. By that point in the evening, the guests had gathered in the kitchen. The appellant had been drinking. He offered to make J.C. a drink and she declined. He then said things like:

I’m – I’m being a bad boy today. Oh I’m being a bad boy today.

[25] J.C. did not understand the comment and simply continued to prepare dinner. The appellant came closer to her. J.C. was quite uncomfortable. She attempted to avoid the appellant, but he continued to stand very near her and eventually he put his hand on her stomach. J.C.’s sister came into the room, and J.C. left the cottage to go outside. Shortly afterward, when J.C. returned to the cottage, she was followed by the appellant and his wife. The appellant’s wife was upset and told the appellant to leave J.C. alone. The appellant’s wife left the room in tears.

[26] The defence had objected to the evidence on the basis that it was irrelevant and potentially prejudicial in that it suggested inappropriate sexual conduct by the appellant towards J.C. The Crown had urged that the evidence was admissible to show the appellant’s state of mind “towards females in general”. Crown counsel had specifically argued that the “bad boy” comment was evidence of the appellant’s state of mind.

[27] In the course of argument, the trial judge made it clear that he rejected the basis upon which the Crown offered the evidence. He specifically indicated that he would not use the evidence as evidence of the appellant’s general attitude towards females and would not use the “bad boy” comment as an acknowledgement by the appellant of any involvement in criminal activity. The trial judge ultimately allowed the Crown to lead the evidence observing that it could be of assistance in understanding the events of August 11.

[28] After the trial judge decided to hear the evidence, there were no further objections to J.C.’s evidence. She testified and the Crown completed its case. Counsel for the appellant did not request a further ruling on J.C.’s evidence at the end of the Crown’s case. The appellant testified and gave his version of the two incidents described by J.C. His testimony was inconsistent with J.C.’s, particularly in respect of the second incident. The appellant was cross-examined on both incidents. The trial judge did not make any further ruling on the admissibility of the evidence. Nor did counsel ask for any further ruling.

[29] In his reasons, the trial judge referred to both incidents, ultimately accepting J.C.’s evidence and rejecting the appellant’s conflicting evidence. He used this adverse credibility finding as one of several grounds on which he ultimately found that the appellant was not a credible witness.

[30] J.C.’s evidence of her contact with the appellant over the course of the day, including the two incidents, was admissible as part of the narrative of the relevant events. Our adversarial system accepts that the truth is best discerned by allowing witnesses to tell their stories about the relevant events. It would have been artificial to limit J.C.’s evidence about August 11 to those incidents that were directly relevant to the allegations. Her credibility, like that of any witness, is best understood by hearing her narrative. The same is true of the appellant when he chose to testify. As presented by both the Crown and defence, this trial was all about what happened on August 11 at the appellant’s cottage. J.C.’s evidence, and the appellant’s evidence concerning the same incidents, helped paint that picture.

[31] J.C.’s evidence about the incident that occurred in the afternoon of August 11 fell directly within the time period that was the focus of the trial. The incident, as described by her, was innocuous and I see no risk that it could somehow be used to blacken the appellant’s character. J.C. was entitled to give that evidence and the appellant was entitled to give his version of that incident. To the extent that the appellant’s description of that incident was inconsistent with evidence that the trial judge found to be credible, that part of the appellant’s evidence would inevitably undermine his overall credibility. I see no unfairness in assessing credibility by comparing the appellant’s description of the incidents with that provided by J.C. This comparison demonstrates the importance of narrative evidence in assessing overall credibility even in respect of the parts of the narrative that are in and of themselves innocuous.

[32] The evidence of the second incident described by J.C. occurred about an hour or two after the alleged assault. It was still, however, part of the narrative. The story to be told by the witnesses does not end with the actus reus of the offence. However, unlike the first incident, there was a real risk of prejudice to the appellant. Had the Crown appreciated that the appellant’s state of mind towards women in general was irrelevant, I doubt that he would have led the evidence of the details of that incident. The details were not necessary to the narrative and posed the risk that the appellant would be seen as a lecherous drunk, making advances towards a relative in the presence of his wife – hardly conduct that could help the appellant’s cause.

[33] This was a judge alone trial. Fortunately, the trial judge was alive to the risk of prejudice posed by this evidence. Given his comments during the argument as to the admissibility of J.C.’s evidence, and given his express and limited use of the evidence concerning the second incident in his reasons, I am satisfied that the trial judge did not misuse the evidence by treating it as evidence of the appellant’s bad character. I would add that the trial judge also rejected the possibility that the appellant’s “bad boy” comment could be taken as an admission by him. This holding was, if anything, unduly favourable to the appellant.

[34] I see no error in the admission of, or the trial judge’s treatment of, J.C.’s evidence.

IV

CONCLUSION

[35] I would dismiss the appeal.

RELEASED: “MAY 09 2012” “DD”

“Doherty J.A.”

“I agree S.E. Lang J.A.”

“I agree G.J. Epstein J.A.”