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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.B., 2014 ONCA 489

DATE: 20140624

DOCKET: C56686

Cronk, Blair and Pardu JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

R. B.
Appellant

Richard Litkowski, for the appellant

Megan Stephens, for the respondent

Heard: June 20, 2014

On appeal from the convictions entered on November 26, 2012 and for leave to appeal the sentence imposed on March 5, 2013 by Justice C. W. Hourigan of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, a 48 year old male, befriended a troubled 14 year old boy. Over a three or four month period the child ended up in the appellant’s home almost daily, with several overnight visits. The appellant was convicted of sexual assault, sexual exploitation and assault of the boy. He appeals his convictions, submitting that the trial judge erred:

• by finding that he stood in a relationship of trust toward the child,

• by finding that an “invitation” to sexual touching encompassed a process of grooming a child for sexual activity so that the child would in fact on a particular occasion initiate some form of sexual contact,

• by subjecting the child’s testimony to relaxed scrutiny, failing to recognize inconsistencies in that evidence, and overemphasizing inconsistencies in the appellant’s evidence,

• by drawing an adverse inference from the failure by defence counsel to put the appellant’s version of the alleged assault directly to the complainant in cross examination.

[2] We will address these submissions in turn.

I. BACKGROUND

[3] The complainant testified that he met the appellant one day in mid-December of 2007. He saw that he was smoking and asked to use the appellant’s lighter. The appellant asked him if he wanted to smoke some weed. They went together to the appellant’s apartment and smoked joints and watched television. The appellant gave him his telephone number and invited him to call if he wanted pot. He also gave the boy an Oxycontin pill. Several weeks later, the boy began visiting the appellant daily. He would smoke weed, play video games and watch television. He was having trouble with his own family. The appellant would turn the pornography channel on the television, and each masturbated in the living room. The complainant testified that in January he offered to give the appellant a “hand job” in exchange for some pot. He engaged in this for about five