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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. T.H., 2014 ONCA 906

DATE: 20141217

DOCKET: C56068

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.H.

Appellant

Timothy E. Breen, for the appellant

Mabel Lai, for the respondent

Heard and released orally: December 10, 2014

On appeal from the conviction entered on July 20, 2012 by Justice Barry Matheson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of sexual assault, sexual interference and invitation to sexual touching in relation to two of his nieces, D. and H. He was also found guilty of making and possessing child pornography. He was acquitted of all charges relating to his son and his nieces C. and B. He was sentenced to four years in prison.

[2] The appellant raises the following grounds of appeal:

(1) The reasons for judgment are insufficient;

(2) The separate counts should not have been considered similar fact evidence;

(3) The trial judge effectively reversed the burden of proof; and

(4) The trial judge misapprehended the evidence.

[3] On appeal, the appellant concedes that there is no issue that H. was sexually assaulted. Her evidence is supported by the circumstantial evidence of a picture of H. with an adult male penis between her legs on the appellant's computer. There was also an inappropriate picture of H. that had been downloaded from a camera belonging to the appellant. The images had been deleted and would not have been accessible to the average user.

[4] The appellant submits that in relation to H. the issue is the identity of the adult perpetrator. In this regard, the overarching position of the appellant is that the identification of the appellant by D. and H. was tainted by discussion within the family suggesting he was a child molester. These discussions took place between Christmas Eve 2008, when an inappropriate image of the complainant D., age 13, was found on the appellant's camera and January 8, 2009 when H., age 6, identified the appellant as the perpetrator. The appellant submits that the evidence of H. and D. (who disclosed about a week later) is suspect because of the tainting influence of discussions within the family after Christmas Eve. He further submits that because the children also used his camera, and other adults had access to his computer, the identification of the appellant as the perpetrator was not proven beyond a reasonable doubt.

[5] We reject these submissions. Although this was the position of the defence at trial, in submissions we note that H. was never confronted in cross-examination with the suggestion that she had misidentified the appellant. Nor was the suggestion put to her that she may have felt pressured into identifying the appellant because of the discussions that took place within the family. Nor were any such questions put to D. We now propose to deal with the specific grounds of appeal seriatim.

(1) Were the reasons for judgment sufficient?

[6] "[R]easons are reviewed for their functionality, not their eloquence", and "must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced": R. v. J.J.B., 2013 ONCA 268, at paras. 20 and 32.

[7] Though the trial judge's reasons are not a model of clarity, his reasons adequately explained, in the context of the record as a whole, why he acquitted the appellant in respect of L., B. and C. and why he convicted the appellant in respect of H. and D. Regarding the first three complainants, the trial judge pointed out numerous inconsistencies. Conversely, he found H.'s evidence consistent. There was photographic corroboration of her abuse and she was steadfast in her assertion that the appellant was the perpetrator. H. was not shaken on cross-examination. Regarding D., though her evidence was inconsistent in several respects that did not impact the main issues, the trial judge did not find that to be unexpected, based on his self-instruction on the approach to children's evidence mandated by the Supreme Court: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30. Though D. denied that the appellant took inappropriate pictures of her, she did testify that he took pictures of her almost every time he saw her on a silver digital camera. Rachel's evidence as to the photograph and the camera supported D.'s testimony.

[8] The reasons are adequate. They are capable of appellate review.

(2) Did the trial judge err by considering the evidence of the complainants as similar fact evidence?

[9] Although the appellant suggests that the similar fact application was abandoned, the Crown simply acknowledged that caution was advisable given the potential for tainting. The appellant submits that similar fact reasoning was not available on the cross-counts respecting H. and D. We disagree. H. and D. described sexual offences with similar characteristics that strongly supported the improbability of coincidence. These similarities included their relationship to the appellant, using family events to provide opportunity, using his bedroom as a venue, having the girls touch his penis, and taking photographs of them on his camera. H. and D. also said that the appellant touched their vaginas and on more than one occasion touched his penis to their vaginas. Although the trial judge erred when he included as a circumstance that the appellant sometimes licked his finger in relation to touching their vaginas, this error does not detract from his finding that the appellant touched their vaginas. This was a judge-alone trial on a multi-count indictment. Moral and reasoning prejudice was minimal. The Crown established on a balance of probabilities, that the evidence was probative of live issues at trial and that its probative value outweighed its prejudicial effect.

[10] This ground of appeal is dismissed.

(3) Did the trial judge effectively reverse the burden of proof and misapprehend the evidence?

[11] The appellant submits that, after instructing himself on the R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, analysis, the trial judge skipped the second step of that analysis. We are satisfied that, read as a whole, the trial judge's reasons indicate that although he rejected the appellant's evidence, it also did not raise a reasonable doubt.

(4) Did the trial judge misapprehend the evidence?

[12] The appellant submits that the trial judge misapprehended the evidence when he stated in his reasons, "It is not a criminal offence to possess adult pornography yet apparently it was erased and was only retrievable by the police using their special equipment. The erasure of these pictures by Travis is an indication of his state of mind." The appellant submits that the trial judge is saying that Travis admitted erasing the pictures.

[13] We disagree that this is the import of the trial judge's comment. The trial judge was making a finding in the context of all of the evidence, including the evidence of the expert, that the appellant was the person who had erased the images.

[14] The appellant also asserts that the trial judge misapprehended an inconsistency in his attitude towards the children. The appellant says he was consistent on the point that he avoided the children at family gatherings because they were undisciplined. We do not agree. The appellant acknowledged that he would be in his room with the female children playing and dancing and that he would go into L.'s room when the other children were there. The trial judge did not misapprehend the evidence in any significant way.

[15] Accordingly, for the reasons given, the appeal is dismissed.

"K.M. Weiler J.A."

"K. Feldman J.A."

"M.L. Benotto J.A."