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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. E.B., 2013 ONCA 429

Date: 2013-06-24

Docket: C53570

Before: Rouleau, Watt and Epstein JJ.A.

Between

Her Majesty the Queen

Respondent

and

E.B.

Appellant

Counsel:

Ari Goldkind, for the appellant

Susan Magotiaux, for the respondent

Heard: June 11, 2013

On appeal from the conviction entered by Justice C. Anne Tucker of the Superior Court of Justice on December 20, 2010, and from the sentence imposed on March 17, 2011.

Endorsement

[1] This appeal was heard on June 11, 2013. It was dismissed with reasons to follow. These are those reasons.

[2] The appellant argues that the trial judge erred in her application of the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, and applied a stricter standard of scrutiny to the appellant’s evidence than she did to the complainant’s. The appellant also submits that the trial judge improperly relied on the complainant’s demeanour to buttress her credibility.

[3] We disagree. The trial judge correctly charged herself in accordance with W.(D.). She carried out a thorough review of the complainant’s evidence. The trial judge reminded herself that the complainant was a young person describing events that occurred when she was 12 years old. This entitled the trial judge to consider the complainant’s childhood perspective and ability, although subject her evidence to a no less stringent standard of proof than the rest of the Crown’s case.

[4] The trial judge expressly considered several inconsistencies in the complainant’s testimony. She found that these inconsistencies did not, however, undermine the complainant’s credibility or the strength of her evidence about the essential elements of the offences with which the appellant was charged.

[5] The trial judge also explained why, quite apart from her acceptance of the complainant’s detailed account of the events, she disbelieved the appellant’s testimony and why that testimony did not leave her with a reasonable doubt. The trial judge noted that the appellant had testified that his memory of the confrontation with the complainant and her mother was very clear and yet, he could remember few details of what was said, including the fact that he could not recall saying “pardon” and neither confirmed nor denied that he said it. The trial judge also found that the appellant’s story about resuming his relationship with the complainant’s mother did not ring true. The trial judge further found that the appellant’s forgiving approach to the serious allegations made by the complainant did not fit well with his animated response to what he considered to be lies advanced by the complainant’s mother. “His comments and behaviours seemed strange if not incredible on these points.”

[6] In our view, therefore, the appellant’s arguments amount to a request that this court reweigh the myriad of tangibles and intangibles that go into a trial judge’s decision in a case that centres on findings of credibility.

[7] Finally, we would not give effect to the appellant’s submission that the trial judge improperly relied on demeanour evidence. The trial judge did not use demeanour as dispositive of any issue at trial. Rather, the trial judge did her best to verbalize her impressions and link them to specific areas of the evidence. She looked at how the demeanour of the complainant and the appellant fit or did not fit with the content of their testimony and the other evidence at trial. In our view, it was appropriate for the trial judge to consider her overall impressions of consistency, demeanour, and common human experience in arriving at difficult credibility assessments of the witnesses at trial.

[8] With respect to the sentence appeal, the appellant argues that his bail conditions included extremely restrictive house arrest for two years, and that this was not taken into account by the trial judge in arriving at the sentence she imposed upon the appellant.

[9] The Crown argues that, pursuant to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), credit for restrictive bail conditions may be given at the discretion of the trial judge. In the Crown’s submission, the trial judge did factor the lengthy period and restrictive conditions of the appellant’s bail into her decision on quantum of sentence. She twice mentioned in her reasons that the appellant had served close to three years on a restrictive bail. The appellant’s trial counsel specifically asked the trial judge whether she took into account the bail in setting the length of the appellant’s sentence. In response, the trial judge responded “Yes. And I did say that in my decision.”

[10] The appellant’s complaint is, in essence, that the trial judge did not set a precise figure for the credit given to him on account of his restrictive bail conditions. In our view, when the trial judge’s reasons for sentence are read as a whole, it is apparent that the restrictive nature and duration of the appellant’s bail conditions were treated as a mitigating factor. Identifying the precise mathematical calculation of the credit is not required. We are satisfied that the global sentence incorporates credit given for the appellant’s lengthy restrictive bail, is well within the range of sentences for crimes of this nature and offenders such as the appellant, and ought not to be disturbed.

[11] For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Paul Rouleau J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”