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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. S.M., 2012 ONCA 762

DATE: 20121109

DOCKET: C53987

O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Counsel:

Delmar Doucette, for the appellant

Scott Latimer, for the respondent

Heard: November 5, 2012

On appeal from the conviction entered on April 1, 2011 by Justice G.M. Mulligan of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

By the Court:

[1] The appellant and his wife were foster parents to the complainant and her three siblings. The complainant was approximately eight years old when she became their foster child. When the complainant was 15 years old, she left the foster home after an argument about cell phone use. She did not return to the foster home. She did not report any sexual improprieties to foster home staff, Children’s Aid Society staff or the police, prior to or on her departure from the home.

[2] Eighteen months later, when the complainant was 17 years old, she told police that the appellant had sexual intercourse with her on many occasions over a three-year period when she was 12 to 15 years old.

[3] The appellant was charged with one count of sexual assault and sexual exploitation and two counts of sexual interference. On April 1, 2011, the trial judge found the appellant guilty on all four counts.

[4] On September 16, 2011, the trial judge imposed a custodial sentence of four and one-half years imprisonment on the sexual assault count and two years imprisonment concurrent on the sexual exploitation count. He entered conditional stays on the two sexual interference counts pursuant to R. v. Kineapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[5] The appellant appeals against conviction. He advances five grounds of appeal.

[6] First, the appellant contends that the trial judge failed to properly consider the evidence relating to the appellant’s erectile dysfunction.

[7] We do not accept this submission. The trial judge expressly considered this evidence in his decision. He summarized all the evidence in this regard, including the appellant’s ex-wife’s testimony that the appellant had a diminished sex life but was still able to perform. He also noted the appellant’s family doctor’s testimony that the appellant complained about “a partial erection or an unpredictable erection.” All this was consistent with the complainant’s description of the appellant’s sexual assaults on her – brief penetration with no ejaculation.

[8] Second, the appellant asserts that the trial judge failed to properly consider the complainant’s inconsistent statements in three domains: (1) a false allegation made in her initial police statement; (2) her previous denials to her sister and police that she had been sexually assaulted by the appellant; and (3) her inconsistent statements about the number and frequency of the sexual assaults.

[9] We disagree. The complainant did not assert that a sexual assault took place on December 17, 2007, her last day in the foster home; what she described was her belief that the appellant intended to assault her on that day. The trial judge dealt with the second point at some length, noting specifically that the complainant “considered herself to be lucky to be in the ... home... with three siblings and all the other advantages that home offered”, and was understandably reluctant to complain of abuse.

[10] On the third alleged inconsistency, it is true that the complainant’s statements about the frequency of the sexual assaults changed over time, beginning at 20 to 50 times over a three-year period and rising to two to three times a week or even more than three times a week. It is also true that in his reasons the trial judge appeared to record both of these frequency frameworks as factual findings.

[11] Early in his reasons, the trial judge said: “It was [the complainant’s] evidence that there was sexual touching or sexual intercourse between 20 and 50 times over these years.” This was an error; this was the frequency the complainant reported in her initial statement to the police. However, near the end of his reasons when he was summarizing his conclusions, the trial judge said that “she allowed that the number of sexual contacts increased to eventually being three times or more per week.”

[12] The appellant’s more substantial complaint on this issue is that the trial judge did not grapple with the credibility-related implications of the complainant’s shifting statements regarding the number of alleged assaults over the years.

[13] We disagree. After reviewing, accurately, the complainant’s various estimates relating to the frequency of sexual assaults, the trial judge concluded:

I accept her evidence as credible and truthful, on the basis that she was recalling events that happened when she was between 12 and 15 years old, events that she tried to block out of her mind. Her age and lack of sophistication, especially when she was younger, provide context for her evidence. Although she expressed uncertainties about the number of times sexual intercourse took place, I accept that a young person would not keep an accurate count of intercourse with a foster father, and would be reluctant to provide any more intimate details than would be absolutely necessary when speaking to a police officer.

In our view, it was open to the trial judge to reach this conclusion.

[14] Third, the appellant argues that the trial judge failed to consider the complainant’s new false allegation, made during her cross-examination, that sexual abuse also took place some mornings before she went to school.

[15] In our view, when this issue arose the appellant’s testimony was halting and uncertain and, at its highest, was that there was a chance that sexual activity took place in the morning because “he had me alone at home”. The trial judge dealt comprehensively with the issue of the complainant’s credibility; he did not have to discuss every aspect of her testimony.

[16] Fourth, the appellant contends that the trial judge did not properly consider the improbability of the complainant’s allegation, given the alleged location and frequency of the sexual assaults and the large number of people residing in the family home.

[17] We disagree. The trial judge addressed this issue under the heading The Opportunity To Be Alone. He reviewed the evidence about the opportunity the appellant had to abuse the complainant when there was nobody else in the house as well as when others were at home. He pointed out that the abuse allegedly occurred from 2003 to 2007. (In fact, it was from 2004 to 2007).

[18] The trial judge concluded as follows: “I’m satisfied that over this prolonged period of time, there were many occasions when [the appellant and the complainant] were at home without anyone else present or nearby”. Further on he continued “I am satisfied that there were sufficient number of evenings when [the complainant and the appellant] were alone in the basement recreation room”.

[19] The appellant points out that in reaching these conclusions, the trial judge incorrectly said that the complainant’s evidence was that there had been sexual touching or intercourse between 20 and 50 times over the years. In fact, the complainant ultimately testified that there had been sexual contact much more frequently than that, probably on about 200 occasions.

[20] We are not persuaded that this error infected the trial judge’s overall conclusion that the complainant was a credible witness. It is clear from his reasons that he understood that the complainant had given different estimates as to the number of times she had been abused and that, nonetheless, he believed her evidence. Implicit in his belief of her evidence is the conclusion that the appellant had the opportunities to abuse her on the number of occasions she described. Thus, while the trial judge did misstate the complainant’s evidence on one occasion in his reasons, we are not persuaded that this mistake made a difference in the result.

[21] Fifth, the appellant submits that the trial judge erred by rejecting the appellant’s credibility on an improper basis. In particular, he challenges this passage from the trial judge’s reasons:

A close analysis of [the appellant’s] evidence raised serious issues about his credibility as to the denial of sexual assault on [the complainant]. The inconsistencies in his evidence lead me to conclude that I do not believe his evidence with respect to the key issue of whether or not sexual assaults took place.

[22] The appellant submits that the references to “his evidence” in this passage mean the appellant’s testimony and there were no inconsistencies in that testimony, nor did the trial judge point to any in his reasons.

[23] Although on a plain reading of only the words of this passage the appellant’s interpretation is certainly possible, against the backdrop of the trial judge’s reasons read as a whole we are inclined to reject it.

[24] The reality is that the appellant testified at his trial and called several witnesses, including his ex-wife (his wife at the relevant time), his two daughters, his son, and his current girlfriend. Over the course of about 15 pages in his reasons before stating the conclusion set out in the passage above, the trial judge reviewed the appellant’s testimony and regularly compared it with the testimony of these defence witnesses. In this context, the trial judge identified several inconsistencies: for example, the appellant’s testimony that he did not shave his pubic hair versus the complainant’s testimony to the contrary as confirmed by the appellant’s ex-wife; the appellant’s testimony that he did not use the Viagra and Cialis he had been prescribed because it gave him headaches versus his ex-wife’s testimony that he did not complain about headaches caused by this medication; and the appellant’s testimony that there was limited opportunity for the complainant to be alone with him after school versus his ex-wife’s testimony that she was not always there after school.

[25] Importantly, in addition to these inconsistencies, the trial judge noted that the complainant, who left the home at age 15, testified that the appellant was circumcised, had a scar on his penis and a mole on his buttocks, shaved his pubic hair, and had had a vasectomy. All of this was accurate; it is a remarkable constellation of intimate physical facts for a 15-year-old foster child to know about a foster father.

[26] Taking these factors together, we cannot say that the trial judge erred by rejecting the appellant’s credibility.

[27] The appeal is dismissed.

Released: November 9, 2012 (“D.O’C.”)

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”