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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. A.T., 2014 ONCA 126
DATE: 20140218
DOCKET: C57100
Gillese, Rouleau and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
A.T.
Appellant
Marc E. Schiffer, for the appellant
Michelle Campbell, for the respondent
Heard: February 11, 2014
On appeal from the conviction entered on January 10, 2013 by Justice Nancy Mossip of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant appeals from his conviction for sexual assault and interference. The sexual assault was stayed pursuant to the Kienapple principle. He argues that the verdict is unreasonable and that the trial judge misapprehended the evidence.
[2] The appellant points to several inconsistencies, mistakes and fabrications in the complainant’s testimony that he argues render the testimony incapable of proving that the sexual assaults were committed beyond a reasonable doubt.
[3] Distilled to its core, the appellant’s argument is an attack on the credibility and reliability findings of the trial judge.
[4] We do not agree that the trial judge committed any error that warrants appellate intervention.
[5] One of the main arguments advanced by the appellant is that the trial judge misapprehended the complainant’s evidence, because the complainant was confused as to who assaulted her, if she was in fact assaulted. The appellant submits that when the complainant referred to her dad, as the perpetrator of the assaults, it was not clear from the evidence whether she was referring to her biological father or her mother’s boyfriend with whom she had lived previously.
[6] We do not agree that the trial judge misapprehended the evidence. The complainant was five years old when she told her kindergarten teacher that she did not want to go home because her dad was hurting her by putting his finger or fingers in her bum. At the time of the allegation, she had lived with the appellant, who was also her biological father, for about five months. While she had, in the recent past, lived with her mother and her mother’s boyfriend, the trial judge after having reviewed all the evidence was satisfied beyond a reasonable doubt that there was no confusion on the part of the complainant at the time when she testified as to the identity of the perpetrator of the sexual assault. At the time of trial, the complainant was seven years old. While there were some inconsistencies and mistakes in her evidence, she never resiled from the core of her initial complaint that she was sexually assaulted by her daddy who placed his finger or fingers in her bum, and she did not waver from her claim that the perpetrator of the sexual assault was the appellant. The appellant did not testify.
[7] In her reasons for judgment, the trial judge accurately identified the legal principles that apply to the assessment of the testimony of child witnesses. She heeded the principle that judges are to take a “common sense approach” in dealing with the testimony of young children: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30. She considered the difficulties, inconsistencies, and mistakes in the complainant’s evidence. After weighing all the evidence, she found the complainant to be both reliable and credible. We see no error in her approach to the evidence or in her application of the appropriate legal principles relevant to the facts of this case.
[8] The trial judge’s credibility assessment is owed a high degree of deference by this court. While this court is entitled, to an extent, to re-examine and re-weigh the evidence pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, an appellate court is not entitled to retry the case. Particular caution is warranted when reviewing a credibility finding of a child witness: see R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. The trial judge was fully aware of the frailties in the complainant’s testimony and nevertheless found her credible. Her conclusion that the child complainant provided a reliable and credible account of the critical facts relating to the sexual assaults is owed deference.
[9] We are also satisfied that the trial judge did not rely on the complainant’s admissions of prior fabrications to conclude that she was not fabricating the incidents in this case. In our view, the trial judge was simply explaining the basis for his finding that the child complainant understood the nature and consequences of a lie and why the complainant’s admissions of prior fabrications did not impair her credibility.
[10] The trial judge did not misapprehend the evidence before her, and her verdict was reasonable. The appeal is dismissed.
“E.E. Gillese J.A.”
“Paul Rouleau J.A.”
“M. Tulloch J.A.”