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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. G.P., 2014 ONCA 39
DATE: 20140117
DOCKET: C55654
Rosenberg, Rouleau and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.P.
Appellant
Stephen F. Gehl, for the appellant
Mabel Lai, for the respondent
Heard: November 29, 2013
On appeal from the conviction entered on September 29, 2011, and the sentence imposed on March 28, 2012 by Justice R.J. Haines of the Superior Court of Justice, sitting without a jury.
Rouleau J.A.:
[1] This appeal was heard on November 29, 2013 and was dismissed with reasons to follow. These are those reasons.
OVERVIEW
[2] The appellant was convicted of historical sexual offences – incest and sexual assault – against his biological daughter R.P. and son L.P. He was sentenced to eight years imprisonment. At trial, the sole issue was credibility. In thorough and detailed reasons, the trial judge explained why he accepted the evidence of the complainants R.P. and L.P., rejected the defence evidence and was not left with a reasonable doubt.
[3] The appellant appeals both conviction and sentence. He argues that the trial judge gave insufficient reasons, misapprehended the evidence, rendered unreasonable verdicts and imposed an unfit sentence.
[4] For the reasons that follow, the appeal is dismissed.
FACTS
[5] In the early 1990s, when R.P. was about five or six years old, till she was about 12 years old, she was sexually assaulted by the appellant. The assaults started with hugging and kissing, progressing gradually to fellatio and vaginal intercourse. By the end, the sexual activity would occur about three times a week. The assaults ended when R.P. began to menstruate.
[6] With respect to L.P., the sexual assaults started with the appellant touching L.P.’s penis with his hands and mouth and L.P. performing oral sex on the appellant. It progressed to anal sex with L.P. penetrating the appellant and vice versa. By the time it came to an end, when L.P. was about 12, sexual activity had become “pretty much a daily routine”.
[7] In 1992, the appellant pled guilty to sexual interference and invitation to sexual touching in relation to a young boy who lived in the neighbourhood. The appellant received a sentence of nine months custody followed by two years’ probation, during which time he had limited contact with R.P. and L.P. During the period of imprisonment and probation, no incidents of sexual assault involving R.P. and L.P. are reported. The evidence about the 1992 conviction appears to have been admitted to explain some of the incidents, especially the disclosure by R.P. and a possible motive to fabricate by R.P.
[8] The appellant testified at his trial and denied any impropriety. The trial judge rejected the appellant’s evidence finding that there were significant inconsistencies in his evidence and that certain aspects of that evidence were improbable, contrived and unconvincing. The trial judge also rejected the other defence evidence. That evidence consisted of testimony from the appellant’s spouse, another of the appellant’s daughters, as well as other relatives and friends. The trial judge found that the evidence of the appellant’s spouse was simply not credible. As to the evidence of the other defence witnesses, the trial judge determined that it was either unreliable or provided little assistance to resolving the issues at trial.
[9] Applying the analysis prescribed by W.(D.), the trial judge concluded that the defence evidence “when considered in the context of all the evidence, does not raise a reasonable doubt.”
[10] The trial judge then considered the Crown’s evidence. The trial judge found both complainants to be credible, accepted their evidence and convicted the appellant.
ISSUES
[11] The appellant argues that, although the trial judge gave extensive reasons, he did not resolve significant conflicts in the evidence of the complainants, misapprehended evidence and came to an unreasonable decision. In his submissions, the appellant focussed on the six problems with the complainants’ evidence. The appellant argues that these problems, either individually or in combination, justify quashing the convictions or, in the alternative, ordering a new trial. The problems raised by the appellant are as follows:
R.P.’s desire to separate the appellant from his grandchildren;
R.P.’s description of her most “dominant” memory of sexual abuse;
R.P.’s uncertainty about whether the appellant’s spouse witnessed the sexual abuse;
R.P and L.P’s differing recollections about witnessing each other’s sexual abuse;
The conflicting evidence between L.P. and the appellant’s spouse as to whether the appellant’s spouse witnessed the sexual abuse;
R.P.’s alleged blackmail of L.P. and L.P.’s initial denial that the appellant had sexually abused him.
ANALYSIS
[12] There were a number of inconsistencies in the testimony of both complainants. Their recollection of certain events varied as between them and, in some cases, was at variance with the evidence of their mother and other relatives and friends who testified for the defence. However, it is apparent from the trial judge’s reasons that the trial judge was alert to these problems in the evidence. He dealt with them and, in the end, found both complainants to be truthful and their testimony and consistent on the critical evidence establishing the offences.
[13] The record discloses that the complainants had had a difficult adolescence and had resorted to the use of illegal drugs at various points. R.P. went through therapy to assist her in dealing with the issues and, as noted by the trial judge, has coped remarkably well. L.P., however, did not manage as well following the abuse.
[14] L.P. initially denied to the authorities that he had suffered any abuse. Ultimately, however, with R.P. pressing on with the allegations, L.P. decided to come forward and he reported the abuse to police. L.P. explained that at first he simply wanted to forget and not become involved. Later however, he found the courage to come forward and tell the truth.
[15] In a case such as this one, the trial judge is in the best position to assess the credibility of the complainants, the defendant and the other trial witnesses. Review of the trial judge’s credibility assessments is limited and informed by “the special position of the trier of fact on matters of credibility”: R v. W. (R.), [1992] 2 S.C.R. 122, at para. 21. His findings are entitled to deference.
[16] The appeal centers almost exclusively on the complainants’ evidence. As I will explain, the trial judge addressed the concerns with that evidence raised on appeal and his conclusions are reasonable and supported by record.
1. R.P.’s desire to separate the appellant from his grandchildren
[17] The appellant argues that R.P’s allegations are false and that she was motivated by hatred towards the appellant. The appellant submits that she lied about the allegations in order to punish the appellant by separating him from his grandchildren. The appellant argues that the trial judge did not deal with R.P.’s motive to lie, and this puts into doubt his conclusion as to the credibility of R.P.
[18] R.P. testified that before any complaint was made to the police, she had become concerned that the appellant not have contact with his grandchildren, one of whom was living with the appellant. R.P. therefore told the Children’s Aid Society (CAS) that the appellant was a convicted sex offender. When the CAS told R.P. that the 1992 conviction was too dated to justify the appellant’s removal from the home, the CAS went on to ask R.P. if she was aware of any other instances. In response, R.P. disclosed to the CAS the sexual assaults committed against her by the appellant. As a result, the appellant was removed from the home in 2010. R.P. later reported the offences to the police resulting in charges being laid.
[19] I do not share the appellant’s concern. R.P.’s motive was clear from the evidence. R.P. readily acknowledged that she wanted to keep the appellant away from his grandchildren. The sequence of events, however, shows that the laying of charges was not foremost on R.P.’s mind. R.P. was reluctant to disclose the allegations and her explanation of why she disclosed the information to the CAS and later to the police is logical and consistent with the allegations being truthful. R.P.’s concern that the children be protected from the appellant and that they not suffer the same abuse she had suffered is both a logical and a reasonable explanation for her reporting of the incidents.
[20] Whether and to what extent R.P. may have been motivated by hatred or a desire to punish rather than a concern for the welfare of the grandchildren did not, in the circumstances, have to be specifically addressed by the trial judge.
2. R.P.’s description of her most “dominant” memory of sexual abuse
[21] In her evidence-in-chief, R.P. described how sexual activity with the appellant escalated over time. For the first two years it went from hugging, kissing to touching his penis and fellatio. She explained that it was not until the appellant completed his sentence in relation to the 1992 conviction for sexual interference and invitation to sexual touching that the sexual activity with R.P. escalated into “full blown intercourse”.
[22] In cross-examination, however, R.P. was asked about the sexual abuse and, specifically, the very first incident of abuse that she remembered. R.P.’s response was “I would have to go with being in the room … when it actually turned into the sexual intercourse ….” R.P. then described this incident in considerable detail. When the appellant’s counsel asked her “I want to go back to make sure you just understood what I just asked you … Is that the very first event of sexual abuse you remember?” R.P. responded:
This is the one that is very dominant in my memory that I would consider actual sexual abuse. I will take the hugging and kissing as actual love. You know, the way a parent is supposed to interact with your child. It’s not like we french kissed. It was how I would think you would interact with your child. Like, it wasn’t – so that’s the most dominant memory for me, yeah.
[23] In re-examination, R.P. explained as follows:
I may not have answered the question appropriately. If you want to know, like, the very first – he asked me what, what my memory was, so my memory goes to my dominant memory. It’s not what led up to it. So, yes, there were hand-jobs before, it’s just not, to me – sex is a big deal. Okay, it’s the sex that matters to me. It’s the sex that brings back all my flash backs. That’s the part that I’m having a really hard time dealing with in my own life moving forward.
[24] The trial judge reviewed this evidence and did not see that it was “indicative of un-truthfulness”. The trial judge explained that the evidence disclosed that R.P. had difficulty being intimate with adult partners because of the sexual abuse she suffered and:
[this] is the aspect of the abuse that haunts her. I do not find it surprising that she would focus on it as she did. I do not, therefore, see that this part of her evidence diminishes the veracity of the balance of her testimony in any view.
[25] The appellant argues, as he did at trial, that this explanation is ridiculous and that the trial judge ought to have found that it shows R.P. to be a liar who concocted the allegations. In the appellant’s submission, the trial judge erred in accepting this explanation.
[26] I do not consider R.P.’s answer to be as problematic as suggested by the appellant. R.P.’s answer must be viewed in context. It came towards the end of R.P.’s cross-examination, after she had fully explained the events. It is apparent from the series of questions and answers that the answer from R.P. at issue was in response to a different question than the one she was asked. She was not being evasive or untruthful. Rather, she was explaining what she considered to be the true sexual abuse that has haunted her in ensuing years. The trial judge was entitled to accept her explanation and to view the exchange as being “a little more nuanced” than the appellant alleges.
3. R.P.’s uncertainty about whether the appellant’s spouse witnessed the abuse
[27] R.P’s friend testified that R.P. had told her that her mother had walked in while the appellant was sexually assaulting R.P. In her testimony, R.P. repeated this allegation but added that she was uncertain and that it may have been a dream. R.P. acknowledged that she had not told her friend that this recollection might have been a dream and accepted counsel’s suggestion that she may have once believed it to be a true memory.
[28] In cross-examination, R.P. explained:
… I had said that I am not sure if it was a dream or reality, but I have a vivid memory of her walking in and walking out, but I don’t know because my dreams are so realistic that, like, the flashbacks are so strong.
[29] The trial judge found that R.P.’s candid admission about the unreliability of this one memory did not taint the reliability of the rest of her evidence. R.P. clearly had concerns as to this particular memory, but was confident as to the seven years of sexual abuse she suffered.
[30] The appellant argues that there was no basis in the evidence for the trial judge’s conclusion and that it was pure speculation and conjecture.
[31] I disagree. The trial judge was in the best position to assess the reasonableness of R.P.’s explanation. The trial judge’s reasons outline why he accepted R.P.’s explanation. The appellant has not satisfied me that the trial judge erred in doing so.
4. R.P. and L.P.’s differing recollection about witnessing each other’s sexual abuse
[32] R.P. recalled that L.P. had, on several occasions, witnessed the appellant having sexual contact with R.P. Those occasions had, according to R.P., been used as a model to teach L.P. how to perform sexual intercourse.
[33] L.P. acknowledged that the appellant was always explaining sex to them but, as far as he could recall, he had not witnessed sexual contact between R.P. and the appellant.
[34] The appellant argued at trial and argues again on appeal that this contradiction in the testimony of the complainants is glaring and sufficient to raise serious doubt as to the credibility of the complainants.
[35] The trial judge agreed with the appellant that this represented a significant difference in the complainants’ testimony. He nonetheless accepted R.P.’s version of events, reasoning that her memory was more detailed and reliable than L.P.’s. To the trial judge, it was apparent that L.P. had pushed many painful memories associated with the abuse out of his mind. As a result, the trial judge did not find it surprising that L.P. did not recall witnessing the assaults on R.P. and did not consider that it detracted from the reliability of the balance of L.P.’s testimony.
[36] These conclusions were open to the trial judge and available on the evidence. The trial judge’s findings are owed deference and I see no basis to interfere.
5. The conflict between L.P. and the appellant’s spouse as to whether the appellant’s spouse had witnessed the sexual abuse of L.P.
[37] L.P. was firmly of the view that, on a few occasions, his mother had walked in on him and the appellant when the appellant was sexually abusing him. L.P.’s mother denies ever having witnessed any such abuse.
[38] The trial judge dealt with this conflict in the evidence by rejecting the evidence of the appellant’s spouse. In the appellant’s submission, however, there was insufficient justification for rejecting the evidence of the appellant’s spouse, and the trial judge ought to have rejected the evidence of L.P. instead.
[39] Credibility findings are in the domain of the trial judge. The trial judge assessed the evidence of the appellant’s spouse and concluded that she was not a credible witness. The appellant’s spouse testified that, although the appellant was chronically unemployed and virtually always at home, he had never been left alone with either of the complainants for the many years that the abuse was alleged to have occurred. As he was entitled, the trial judge found this not to be credible and that it constituted a basis for rejecting the spouse’s evidence. The trial judge explained that, although she claimed not to be taking sides, it was apparent that she was doing her best to deflect potential responsibility for any of the abuse from herself. The trial judge’s finding of credibility is reasonable and I see no basis to interfere.
6. R.P.’s alleged blackmail of L.P. and L.P.’s initial denials that the appellant had sexually abused him
[40] Two of the defence witnesses testified that L.P. had told them that R.P. was blackmailing him by threatening to withhold access to his son unless he supported her allegations of abuse by the appellant. At the time, R.P. had applied to adopt L.P.’s son. L.P. is also alleged to have told these two defence witnesses that he had never been assaulted by the appellant.
[41] L.P. acknowledged that he had originally denied that any abuse had occurred but went on to explain why he later came forward with the truth. However, L.P. adamantly denied ever having been blackmailed by R.P. and denied ever having told the two defence witnesses of any blackmail.
[42] The trial judge accepted L.P.’s explanation as to why he had originally denied any abuse. The trial judge also considered the conflict in the evidence as to whether L.P. had told the witnesses about being blackmailed. He resolved the conflict by finding that “it seems more likely that the prospect of blackmail was introduced into the conversation by someone else and eventually attributed to L.P. In any event, I accept L.P.’s testimony that he never told anyone R.P. was blackmailing him.”
[43] The appellant argues that the trial judge’s explanations for accepting L.P.’s testimony are without any evidentiary foundation.
[44] In my view, it was open to the trial judge to accept L.P.’s explanation and to conclude, as he did, that there had been no blackmail. The trial judge engaged in a reasoned analysis of L.P.’s evidence on these points and found L.P. to be credible. Although the trial judge’s suggestion that the notion of L.P. being blackmailed may have been “introduced into the conversation by someone else and eventually attributed to L.P.” is, to an extent, speculative, it does not detract from his acceptance of L.P.’s clear denials.
7. Conclusion on the conviction appeal
[45] In my view, therefore, the trial judge committed no error in his review of the evidence and of the applicable law. He made the necessary findings of fact and gave reasoned explanations for his findings of credibility. The appellant has neither shown that the trial judge’s findings and conclusions are in error, nor that the verdicts are unreasonable.
THE SENTENCE APPEAL
[46] The appellant acknowledges that the sentence was within the range of sentences appropriate for offences such as these. The appellant was in a position of trust. The abuse was frequent and ongoing. Although there was no collateral physical violence, the appellant’s manipulation and ongoing abuse of the complainants left both complainants psychologically scarred. The appellant had previously served a custodial sentence on an earlier sexual assault and remained undeterred. As a result, I consider the trial judge’s determination that a global eight year sentence appropriate and that it reflects no error.
CONCLUSION
[47] For these reasons, the appeal is dismissed and, although leave to appeal sentence is granted, the sentence appeal is also dismissed.
“Paul Rouleau J.A.”
“I agree M. Rosenberg J.A.”
“I agree G. Pardu. J.A.”
Released: January 17, 2014