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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. J.W., 2014 ONCA 628

DATE: 20140909

DOCKET: C57070

Hoy A.C.J.O., Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Applicant/Appellant

Paul Calarco, for the appellant

Michael Fawcett, for the respondent

Heard: September 4, 2014

On appeal from the conviction entered on November 29, 2012 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was found guilty of three sexual offences and sentenced to three and a half years’ imprisonment.

[2] Initially, the appellant appealed against both conviction and sentence but he later abandoned his appeal against sentence. His appeal against conviction rests largely on his submission that the trial judge erred in assessing the credibility and reliability of the complainant.

BACKGROUND IN BRIEF

[3] The complainant was born in 1992. The appellant was born in 1983. They met while playing road hockey in their neighbourhood. At that time, the complainant was 9 or 10 and the accused was 17 or 18 years old. Within a year, the complainant and some other boys, including his two older cousins, began watching movies, playing video games and sleeping over at the appellant’s home, where he lived with his grandmother.

[4] In 2009, the complainant alleged that between 2001 and 2005, while he was under the age of 14, a number of sexual incidents occurred between him and the appellant, all in the appellant’s bedroom when the other boys were not present. The appellant testified at trial and denied engaging in any sexual acts with the complainant.

[5] At some point, the complainant stopped visiting and speaking with the appellant, but later resumed those activities.

[6] In his reasons for conviction, the trial judge stated that both the complainant and the appellant gave their testimony in a straightforward and direct manner, answered questions without hesitation, and were not caught in any material inconsistency or shaken on cross examination. He then gave reasons for accepting the complainant’s testimony and rejecting that of the appellant.

THE ISSUES

[7] The appellant submits that the trial judge erred by:

1. Overemphasizing emotional demeanour;
2. Equating the level of detail of the complainant’s evidence with reliability;
3. Failing to address the “inconsistent” explanations that the complainant gave for failing to disclose earlier;
4. Treating speculative responses from the appellant as indications that the complainant’s testimony was reliable; and
5. Applying different levels of scrutiny to the evidence of the Crown and the defence.

ANALYSIS

[8] We begin by noting that the appellant takes no issues with the trial judge’s articulation of the relevant legal principles. He submits that the trial judge erred in his application of those principles.

[9] We do not agree. In our view, the trial judge committed none of the alleged errors.

1. With regard to the first issue, the trial judge was entitled to consider demeanour as one aspect of his assessment of credibility. The trial judge did not treat demeanour as dispositive but, rather, as one of several reasons for believing the complainant. He gave cogent reasons for accepting the complainant’s evidence, including such things as the opportunity for the events to have occurred, and the fact that there was a period of time during which the complainant avoided contact with the appellant and stopped going to his home. In relation to opportunity, the trial judge noted that apart from the appellant’s grandmother, the other witnesses testified that the complainant slept overnight, alone, with the appellant on numerous occasions. In relation to the break in contact, he noted the corroboration of various witnesses to the fact of the break in contact, although they differed on the length of that period.

2. As for the second issue, contrary to the appellant’s submissions, the trial judge did not equate the detail in the complainant’s testimony about attempted anal sex and incidents of oral sex with reliability. Rather, the trial judge used the level of detail as one indicator of reliability, noting that on cross examination no inconsistencies were revealed about those matters.

We see nothing in the suggestion that the trial judge implicitly used the lack of detail in the appellant’s evidence to reject it. Nothing in the reasons supports this submission.

3. We see nothing in the appellant’s third submission, which is based on the varying explanations that the complainant gave for not making an earlier report of the abuse. Those various explanations included “almost starting to believe it didn’t happen”, “just want[ing] it to go away”, “thinking it had to be [his] fault” and trying to forget about it. Giving a variety of explanations does not necessarily mean that they are inconsistent.

4. The fourth ground of appeal is based on para. 165 of the trial judge’s reasons for conviction, in which the trial judge states that in the appellant’s testimony, the appellant acknowledged that “something must have happened” to the complainant.

The record supports the trial judge’s statement. For example, in examination in chief, in response to a question as to how he felt after learning of the allegations, the appellant volunteered that the “only thing I could think of is that … someone touched him or something like that happened.”

5. We do not accept that the trial judge applied different standards of scrutiny to the evidence of the Crown and the defence. There is nothing to suggest that the trial judge did anything other than approach each side’s evidence with the same careful review.

DISPOSITION

[10] Accordingly, the appeal against conviction is dismissed. The appeal against sentence is dismissed as abandoned.

“Alexandra Hoy A.C.J.O.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”