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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. K.M., 2012 ONCA 319

DATE: 20120515

DOCKET: C52625

Feldman and Watt JJ.A. and Dambrot J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

Timothy E. Breen, for the appellant

David Finley, for the respondent

Heard: January 24, 2012

On appeal from the conviction entered on June 3, 2010 by Justice John McIsaac of the Superior Court of Justice, sitting without a jury.

M. Dambrot J. (ad hoc):

[1] The appellant appeals from his convictions for sexual assault and sexual interference with a person under the age of fourteen, arguing that the trial judge’s reasons for judgment were inadequate. Specifically, he argues that:

1. The trial judge failed to consider all of the evidence in determining the credibility of the complainant, and in particular, failed to reconcile or take account of significant contradictions, and that this misapprehension of the evidence amounted to an error in law; and

2. The trial judge found confirmation of the complainant’s evidence in evidence that lacked sufficient materiality to bear that weight.

The Offences

[2] The sexual assault and sexual interference charges of which the appellant was convicted involved allegations that the appellant molested his eldest daughter on a number of occasions. Specifically, the sexual assault charge covered the period from […] 1985, the complainant’s third birthday, to December 31, 2006, when she was twenty-four. The sexual interference charge was limited to the period from January 1, 1988, the day when this offence was proclaimed in force, and when the complainant was five, to […], 1990, the complainant’s eighth birthday. The appellant was acquitted of a third count, alleging an invitation to a person under the age of fourteen to sexual touching. Although the trial judge accepted the complainant’s evidence concerning the incident that formed the subject matter of count three, the Crown conceded and the trial judge concluded that the offence was not made out. The complainant was twenty-seven at the time of the trial.

[3] The appellant and his wife, the complainant’s mother, were married in 1982. The complainant was born six months later. A second daughter was born in 1987, and a son in 1990.

[4] When the complainant was born, the family resided at a rooming house in Barrie owned by the appellant. In 1991 or 1992, the appellant’s wife learned that the appellant was involved in an affair, which continued even after the appellant told her it had ended. She remained in the marriage due to financial dependency until 1995, when she left, taking custody of the children. The complainant was about thirteen when her parents separated.

[5] The complainant testified that when she was three or four, the appellant would call her into the bathroom while he was having a bath and would play a game with her involving a small wind-up toy called Freddy the Fish. He would encourage her to catch it as it moved towards his genitals. When the complainant reached to grab the fish, she would brush his penis. This was the subject of count three. As I have noted, while the trial judge believed the complainant’s account of these events, he acquitted the appellant of count three because in his view the evidence did not make out the offence.

[6] The complainant also testified that, beginning when she was between five and seven years old, and ending when she was nine, the appellant would come into her bedroom and lie beside her, naked. She recalled occasions when he touched her chest, when she felt his erect penis against her back and when he tried to get her to touch his penis. She also recalled seeing the appellant masturbate in her bedroom, and expose himself to her in the bathroom and while passing her on the stairs.

[7] On the first occasion when the appellant tried to get the complainant to touch his penis, she recalled that the appellant got in bed with her, held her close to him, kissed the back of her neck, sucked her earlobes, told her that he loved her more than her mother or sister, put his hand down her pyjama bottoms, touched her buttocks and asked her to give him her hand. When she refused, he took her hand and placed it on his penis. The complainant began to cry, pulled away and got out of bed.

[8] The next morning, the complainant told her mother that “daddy touched me in a bad way and he tried to make me touch him.” Her mother looked at her as if she was going to kill her and screamed, “I fucking know already. He already told me. He was drunk and he thought he was in my room.” Her mother then grabbed her by the hair and “bashed” her head on the floor numerous times. As a result of this reaction, the complainant never tried to disclose the appellant’s abuse to her mother again.

[9] The complainant’s mother was called as a witness by the Crown. She denied that the complainant had made such a complaint or that she had assaulted her in return, but she confirmed that, on one occasion, the appellant was drunk and upset, and told her that he had touched the complainant and he “shouldn’t have.” He attributed his behaviour to a lack of sexual attention from his wife. The complainant’s mother said that the appellant was describing an event that had just happened, and that it occurred when the complainant was between three and ten years old. She assumed that the appellant had engaged in intercourse with the complainant. She never observed any inappropriate conduct between the appellant and the complainant.

[10] The complainant’s mother confirmed that the complainant had a bath toy when she was very young called Freddy the Fish and that the appellant took daily baths and would normally wear only a bathrobe around the house.

[11] After the appellant and the complainant’s mother separated, the younger children spent every second weekend with their father, and the complainant visited him occasionally. In 1997, the appellant moved to Thornton, Ontario with his girlfriend. The complainant continued to visit him on occasion in Thornton.

[12] The complainant testified that on one occasion when she visited the appellant with her boyfriend, the appellant came up behind her while she was kneading some pie dough in the kitchen. He put his arms around her and pressed against her. She could feel his erect penis against her lower back. Her boyfriend was in the living room at the time, and could not see what was happening.

[13] On another occasion while visiting the appellant in Thornton, the complainant complained of a sore back. The appellant massaged her back while she was lying on a couch. The appellant lifted her shirt and unfastened her bra, and pulled down her pants. When he asked her to turn over onto her back, she complied. He rubbed her stomach and attempted to touch her breasts. She was unable to refuse. This episode terminated abruptly when the appellant’s girlfriend returned home and knocked on the locked door.

[14] On yet another occasion at the appellant’s home, the appellant, who suffered from a bowel disorder, discussed the health benefits of enemas and asked the complainant and her brother if they wanted to try it. The brother refused, but the complainant agreed. She was intoxicated at the time, and was incapable of saying no. She and the appellant went to the bathroom and undressed. She gave him an enema first, and he then administered one to her. The appellant briefly touched the complainant’s vagina without her consent. When they came out of the bathroom, the appellant told his son that the complainant had an enema. The son was shocked.

[15] When they returned to the living room, the appellant asked the complainant to sit on his lap. She agreed. The appellant covered the complainant with a blanket, and in his son’s presence, put his hand down the complainant’s top and fondled her breast. The complainant said that from her brother’s facial expression, she thought that he knew what was going on. He was a teenager at the time. This was the last time that the appellant sexually abused the complainant.

The Complainant

[16] Although the complainant has a grade twelve education, she struggled to get through high school. She has short term memory problems and is unable to perform simple arithmetic. She believes that she suffers from an undiagnosed learning disability. She is employed as a server in a restaurant.

[17] As a child, the complainant did not get along well with the appellant. She felt that he was too strict and that his discipline was excessive. Their relationship improved after he moved to Thornton.

[18] The complainant testified that she was severely physically and psychologically abused by her mother. She was beaten by her mother daily. Her siblings were also abused by their mother, but to a lesser extent. Her relationship with her mother had improved over the last few years. Her mother told her that the appellant was “not right in the head” and that she should stay away from him.

[19] The complainant exhibited behaviour problems as a child. She had a violent temper, and frequently got into trouble at school. She did not get along well with others and was often truant. She began using alcohol when she was nine years old. She began using narcotics when she was ten years old, and hallucinogens when she was eleven or twelve. She used drugs daily during her teenage years.

[20] The complainant suffers from depression and anxiety disorder. She has been treated by psychologists and psychiatrists since she was thirteen or fourteen. At fifteen, she was hospitalized for several weeks after a psychotic episode. She has been hospitalized several more times since then. At one time she was diagnosed with bipolar disorder, but a definitive diagnosis is difficult because of her chronic substance abuse.

[21] On January 30, 2008, the complainant was found guilty of breaching a condition of an undertaking that she not consume alcohol, and was given a conditional discharge.

[22] The complainant had been sexually assaulted by a music teacher when she was in grade three. She reported the matter to the school, and subsequently spoke with the police.

The Complaint

[23] The complainant testified that she had disclosed the appellant’s abuse while attending a twelve step program at Athena Centre. In discussing the matter at the Centre, she realized that what was going on was wrong and decided to report it.

[24] On May 10, 2007, about six months after the enema incident, the complainant met with detectives and provided a statement in which she reported being sexually abused by the appellant. She recalled being in the back seat of a police car sometime prior to giving the statement, and complaining of sexual abuse by the appellant, but could not remember why she was there. She did recall that her partner had been charged with assaulting her, and that she had been kicked out of her apartment.

[25] The complainant’s mother testified that from the age of 18 or 19, the complainant would report inappropriate sexual behaviour on the part of the appellant. The complainant called her the night before she went to the police and told her that she was ready to tell her story.

The Defence

[26] The complainant’s brother was the only defence witness. He recalled occasions when he and the complainant had both been at the appellant’s home in Thornton together. On those occasions, the appellant and the complainant would both consume alcohol, but he would not. He had no specific recollection of any incident where there had been a problem, and did not recall the enema incident. He thought that if it had happened, he would remember it. He never saw the appellant touch the complainant inappropriately.

The Reasons for Judgment

[27] After reviewing the evidence in some detail, and giving himself a so-called Vetrovec warning about the complainant’s evidence (in effect, as he put it, a reminder that her evidence was inherently unreliable because of the bizarre nature of some of her allegations against her father, and that it was dangerous to convict on the basis of her evidence unless confirmed by independent evidence: see Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811) the trial judge gave his reasons for finding the appellant guilty of the first two counts in the indictment. In doing so, he divided the many allegations made by the complainant against the appellant into two categories: (1) the incidents at the family home in Barrie when the complainant was between three and thirteen years old; and (2) the incidents in Thornton, when she was a teenager and young adult. I note that count one, the sexual assault offence, includes alleged misconduct at both locations, while count two, the sexual interference offence, includes alleged misconduct exclusively at the family home in Barrie.

[28] With respect to the Thornton incidents, the trial judge noted that there was absolutely no independent support for the complainant’s allegations, and that in fact, there was independent testimony from her brother refuting the enema incident. For those reasons, the trial judge concluded that the Crown had failed to establish those allegations beyond a reasonable doubt.

[29] With respect to the Barrie incidents, the trial judge believed the complainant, and on that basis he found the appellant guilty of both count one and count two. He was able to reach this conclusion because there was some independent evidence supporting the complainant’s complaint. The most compelling confirmation was the evidence of the complainant’s mother that the appellant “confessed” to some form of inappropriate touching of the complainant when the complainant was still quite young. Although the complainant’s mother did not support the complainant’s evidence that she disclosed the abuse to her mother and that her mother responded violently, the support that the complainant’s mother did provide gave the trial judge confidence in accepting this part of the complainant’s evidence. He went on to say that the complainant’s mother’s evidence that she had a Freddy the Fish bathtub toy, and that the appellant would parade around the house dressed only in a bathrobe supported the complainant’s evidence “to a lesser degree.”

[30] In addition, the trial judge specifically found the complainant’s mother to be truthful despite the fact that she was a somewhat passive individual. He did not accept the defence submission that she was evasive, forgetful and unconvincing, or that she exaggerated about the appellant’s alcohol consumption.

Analysis

1. Failure to consider all of the evidence

[31] In essence, the appellant complained that trial judge found the complainant credible without explaining how he reconciled her psychological history, and the “significant” contradictions between her evidence and the evidence of her brother, and to a lesser extent the evidence of her mother.

[32] I would not give effect to this argument. The trial judge was well aware of the frailties in the complainant’s evidence. Before reaching any conclusions about the credibility or reliability of the complainant’s allegations, he summarized the evidence, including the contradictions between the complainant’s evidence and the evidence given by her mother and brother. The trial judge then made reference to the complainant’s psychiatric problems and her drug and alcohol abuse, and the lateness of her complaint. Next, as I have already noted, he cautioned himself about the complainant’s evidence. He gave himself a so-called Vetrovec warning, reminding himself that she should be treated as a “suspect” witness whose testimony should be supported by independent evidence before being accepted. He gave himself this warning, as I have noted, because of the bizarre nature of some of her allegations against her father, specifically the enema incident, and her claim that her father exercised power over her ability to resist his illicit suggestions.

[33] Only then did the trial judge analyze the allegations made by the complainant against the appellant. In relation to the Thornton allegations, as I have already mentioned, after noting the absence of independent support for the complainant’s allegations, and the independent evidence of her brother refuting the enema incident, he found that the Crown had not established those allegations beyond a reasonable doubt. This was despite the fact that, in the end, he found the complainant to be truthful about past events.

[34] With respect to the Barrie allegations, he found some independent evidence supporting the complainant’s evidence, specifically her mother’s evidence about the appellant’s evidence, and, to a lesser degree, the evidence about the existence of a Freddy the Fish bathtub toy, and the appellant parading around in a bathrobe, despite the fact, as he noted, that the complainant’s mother did not support the complainant’s evidence about her disclosure to her mother, or her mother’s violent reaction. In the end, he rejected the suggestion that the complainant was evasive, forgetful or unconvincing in her testimony, and indicated that he was satisfied that she was truthful of past events, and was satisfied that the Crown had established the Barrie allegations beyond a reasonable doubt.

[35] In my view, the trial judge’s approach to the evidence was unassailable. After considering all the evidence, including the frailties outlined by the appellant, he found the complainant truthful in relation to past events. Despite this, with respect to the Thornton allegations, in the absence of confirmation, and in the presence of some contradiction, he said that he was not satisfied that the Crown had met its onus of proof. On the other hand, in respect of the Barrie incidents, in the presence of some confirmation, and in the absence of material contradiction, he said that he was satisfied that the Crown had met its onus. In my view, he was not required to do more.

[36] The appellant complains, in particular, that the trial judge failed to reconcile his “rejection” of the complainant’s evidence about the Thornton allegations with his acceptance of her evidence about the Barrie allegations. I note, first of all, that the trial judge did not reject the complainant’s evidence about the Thornton allegations. He simply found that the Crown’s burden of proof had not been met. But even if it could be said that the trial judge rejected the complainant’s evidence about the Thornton allegations, his alleged failure to reconcile this rejection with his positive findings about her evidence in relation to the Barrie allegations did not render his reasons deficient. It was open to the trial judge to accept some of the complainant’s evidence while rejecting other parts of her evidence. His reasons for doing so were clearly explained. (See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.) There is no merit to this complaint. I would not give effect to this ground of appeal.

2. The confirmation lacked sufficient materiality

[37] The appellant argues that the trial judge found confirmation of the complainant’s evidence in evidence that lacked sufficient materiality to bear that weight. He complains that the appellant’s confession to the complainant’s mother was too vague, particularly because she could only say that it occurred sometime over a seven year period. He further complains that the existence of the complainant’s bath toy and the appellant’s habit of wearing a robe cannot serve as confirmation.

[38] I do not agree. It must be remembered that evidence that strengthens the belief in the veracity of a tainted witness can be confirmatory even though it does not provide direct support for the allegation of misconduct. (See Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.)) Here, the evidence of the confession made by the appellant to his wife at the time was undoubtedly too vague to found conviction on its own. But it was certainly capable of confirming the evidence of the complainant.

[39] With respect to the evidence about the existence of a fish bathtub toy, and the appellant parading around in a bathrobe, I am of the view that its confirmatory value was slight. While this evidence is directed to important parts of the complainant’s allegations, it is too commonplace to carry much weight. It is apparent, however, that the trial judge did not afford it great weight. He made only a passing reference to it, and described it as supporting the complainant’s evidence “to a lesser degree.” On the other hand, he described the confession as “the most compelling factor,” and said that it provided sufficient support of the complainant’s complaint to give him confidence in accepting this part of her allegation against the appellant. Having regard to the significance he placed on the confession, I see no error in the trial judge’s additional reference to this minimally confirmatory evidence. I would not give effect to this ground of appeal.

Disposition

[40] In my view, this appeal must be dismissed.

Released: May 15, 2012 (“K.F.”)

“M. Dambrot J. (ad hoc)”

“I agree K. Feldman J.A.”

“I agree David Watt J.A.”