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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Thompson, 2012 ONCA 564

DATE: 20120831

DOCKET: C54852

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Thompson

Appellant

Frank Addario, for the appellant

Roger A. Pinnock, for the respondent

Heard: August 21, 2012

On appeal from the judgment of Justice Michael H. Tulloch of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated December 30, 2011, dismissing the appeal from the conviction entered by Justice June Maresca of the Ontario Court of Justice on May 6, 2010.

By the Court:

[1] The appellant was convicted of two counts of sexual assault and one count of invitation to sexual touching in a summary conviction prosecution in the Ontario Court of Justice. His appeal to the Superior Court of Justice was dismissed. He appeals the convictions to this court, having been granted leave to appeal by a single judge of this court.

[2] The alleged offenses involved a nine-year-old female complainant who stayed with the appellant and his wife overnight on two occasions: once in April and once in May 2009. The appellant and his wife were close friends of the complainant’s parents and acted as “adopted” grandparents to their children.

[3] The complainant and appellant gave differing accounts of what occurred on the overnight visits. The complainant testified that on each of her two visits, the appellant had rubbed her breasts, vagina and buttocks and asked her to rub his belly and put her hand down his pants while they watched a movie in the basement. This formed the basis of the sexual assault charges. The allegation of invitation to sexual touching arose from the complainant’s testimony that during her May visit, the appellant invited her to lie with him in a hammock and rub his belly.

[4] The appellant, age 72 at the time of the alleged offenses, denied the allegations. He testified that it was the complainant who took his wrists and placed them on her breasts on each occasion. His evidence was that he pulled his hands away and scolded the complainant for her behaviour. He denied the invitation to touching allegation and stated that the complainant simply lay with him for a few moments in the hammock. The appellant’s wife testified that she was present during the entire time the movies were played and that nothing untoward occurred.

[5] The trial judge engaged in a lengthy discussion of credibility and gave detailed reasons for concluding that she accepted the evidence of the complainant and rejected that of the appellant and his wife.

[6] The appellant submits that the reasons of the summary conviction appeal court judge dismissing the appeal failed to deal with his submissions that the trial judge had both misapprehended evidence relating to her credibility findings and failed properly to apply the W.(D.) test. These submissions effectively invite us to deal with the alleged inadequacies in the trial judge's reasons, and we will proceed to dispose of the appeal on that basis.

(1) Did the trial judge misapprehend the evidence relating to the timing of the basement assaults or fail to explain adequately her reason for rejecting the evidence of the appellant’s wife?

[7] The complainant consistently testified that both basement assaults occurred during the first part of the movie when the appellant’s wife was not present. The appellant’s wife testified she was present for the entire movie on both occasions. On one of the evenings, she left the basement after the movie had concluded to get a glass of wine. In her trial evidence, she testified that she took the complainant with her for a treat. In her statement to the police, she said that she first went for wine, leaving the appellant and the complainant together in the basement alone, and then the complainant came upstairs. The trial judge found this was a significant inconsistency, as it took off the table a period of time when the assault could have occurred.

[8] The appellant submits that the inconsistency was insignificant, given the complainant’s consistent story that the assault occurred during the first part of the movie. The appellant further submits that the trial judge erred by finding that the assaults might have occurred after the movie, a time completely at odds with the complainant’s evidence.

[9] We are unable to give effect to this ground of appeal for the following reasons.

[10] First, we agree with the central point made by the respondent, namely, that the issue was neither whether the touching occurred nor when it occurred, but rather whether it was the complainant or the appellant who instigated the touching. According to the appellant, he and the complainant were alone in the basement before his wife came down, and it was the complainant who took his hand to her breasts. Even on the appellant’s own evidence, there was sexual touching at some point on both occasions.

[11] Second, the trial judge gave full reasons for rejecting the evidence of the appellant’s wife. The trial judge found that the appellant’s wife was so persuaded that her husband could not have committed these offenses that, even if she was not deliberately attempting to mislead the court, her evidence could not be trusted. The inconsistency between her police statement and the evidence she gave at trial was simply an example of that phenomenon.

[12] Third, we do not agree with the submission that the trial judge convicted the appellant on the theory that the assaults might have occurred after the movie concluded and while the wife was getting a glass of wine. The trial judge was clear in her acceptance of the complainant’s version of events.

[13] We add here a point that carried significant weight with the trial judge. The appellant’s evidence that the nine-year-old complainant had initiated sexual conduct with him was implausible and was made even more implausible by his failure to report the complainant’s highly inappropriate conduct to his wife or the complainant’s parents.

(2) Did the trial judge fail to apply the W.(D.) test?

[14] The appellant submits that while the trial judge stated that the “defendant’s evidence” was insufficient to raise a reasonable doubt, she failed to consider whether the evidence of the appellant’s wife and daughter was sufficient to raise a reasonable doubt.

[15] We disagree. While perhaps the trial judge could have explained this point more fully, in our view, paragraphs 58 and 60 of her reasons are sufficient. There, she evaluated the “totality of the evidence”, including the evidence of the appellant, his wife, and a friend of the appellant who provided character evidence. She concluded: “I find that on the totality of all the evidence, the crown has discharged its onus beyond a reasonable doubt.”

(3) Did the trial judge err by failing to deal with evidence as to the appellant’s apparel?

[16] The complainant testified that the appellant was wearing black or navy blue Joe Boxer shorts when the assaults occurred. The appellant denied wearing boxer shorts on the two occasions, a denial supported by his wife and daughter who testified that he was not in the habit of wearing boxer shorts around the house. The appellant introduced into evidence a pair of Joe Boxer shorts that he owned. Those shorts had a dark blue waistband, but the fabric was plaid rather than black or navy blue. The trial judge did not specifically address this point in her reasons.

[17] While it would have been preferable had the trial judge done so, in the context of this case and given the balance of the evidence, we are not persuaded that the trial judge’s failure to deal with this point is fatal to the convictions. The issue of the appellant’s apparel was peripheral, the discrepancy between the complaint’s description of the shorts and the shorts produced by the appellant was not great and, given the balance of the evidence, we are satisfied that this evidence would not have impacted the trial judge’s credibility findings.

(4) Did the trial judge misapprehend the significance of video evidence of the hammock?

[18] The appellant introduced video evidence that showed a hammock in a position where it could be seen by the appellant’s wife from their house. In his testimony, the appellant relied on the video to refute the invitation to sexual touching allegation by suggesting that he would not have done anything untoward from a position where he could readily be seen by his wife. However, in cross-examination, the appellant admitted that the position of the hammock shown in the video was different from its location at the relevant time. The trial judge found this to be a deliberate attempt to mislead the court, a finding that she used to support her rejection of the appellant’s evidence.

[19] The appellant submits that the trial judge failed to take into account that a videographer arranged by the appellant’s lawyer, not the appellant, who had prepared the video.

[20] We see no merit in this submission. Knowing that the video did not show the true position of the hammock on the day in question, the appellant nonetheless relied on the video to support his story. It was open to the trial judge to find that, whoever prepared the video, the appellant had testified in a manner that he knew to be misleading and that this bore directly upon his overall credibility.

Conclusion

[21] For these reasons, and despite the very capable argument advanced on behalf of the appellant by Mr. Addario, the appeal is dismissed.

Released: Aug. 31, 2012

“KF” “K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Ducharme J.A.”