WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. M.C., 2014 ONCA 96
DATE: 20140204
DOCKET: C54874
Sharpe, Watt and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.C.
Appellant
Mark Huckabone and Jessica Fuller, for the appellant
Lorna Bolton, for the respondent
Heard: January 28, 2014
On appeal from the judgment of Justice D. Kent Kirkland of the Ontario Court of Justice, dated December 15, 2011.
ENDORSEMENT
[1] The appellant was convicted of three counts of indecent assault and three counts of gross indecency following a trial under the Juvenile Delinquents Act (now the Youth Criminal Justice Act, S.C. 2002, c. 1). The charges, alleged to have occurred between May 1964 and May 1970, involved the appellant’s sister, VC, and his two female cousins, EK and RR. The appellant was born in 1952. VC was born in 1956. EK and RR were born in 1957 and 1958. All three complainants testified as to the alleged incidents. The appellant also testified and denied having sexually assaulted or molested the complainants.
[2] The appellant raises the following grounds of appeal:
- The trial judge’s reasons were insufficient and the verdict unreasonable because the trial judge
a) failed to explain why he accepted the evidence of the complainants despite its frailties; and
b) failed to explain why he rejected the appellant’s evidence.
The trial judge put the onus on the appellant to explain the evidence against him and applied a stricter standard of proof to the appellant’s evidence than that of the complainants.
The trial judge erred in considering the evidence across counts as similar fact evidence.
Adequacy of the trial judge’s reasons
(a) Frailties in the evidence of the complainants
[3] The trial judge delivered eighteen pages of oral reasons for convicting the appellant. Before this court the Crown concedes that those reasons were not ideal, but argues that they do provide an adequate basis for appellate review. We agree with that assessment.
[4] The trial judge reviewed in some detail the evidence of each of the three complainants. He identified the frailties in their evidence, essentially that they were uncertain as to some details and that there were some inconsistencies. With respect to VC, despite her protestations to the contrary, the trial judge was clearly alive to MC’s argument that she had a motive to lie that arose from a dispute with the appellant about the financial affairs of their mother.
[5] In our view, the trial judge provided an adequate explanation for accepting the evidence of the complainants despite these frailties.
[6] With respect to the evidence of EC and RR, the trial judge observed that neither witness had any motivation to fabricate her evidence. He also noted that they were young children at the time of the alleged incidents and that more than 40 years had passed. The trial judge referred to R. v. F.P. (2005), 2005 23218 (ON CA), 199 O.A.C. 230 (C.A.), at para. 11, where this court explained that where witnesses testify years later regarding events that occurred while they were children “some variation in their memories and in the accounts they told are to be expected.” He also referred to the decision of the Supreme Court of Canada in R. v. P. (M.B.). 1994 125 (SCC), [1994] 1 S.C.R. 555, at p. 567, where the court stated that “in cases involving offences and particularly sexual offences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary”.
[7] With respect to all three complainants, the trial judge found that the similarity in their accounts of the alleged incidents was striking. It is apparent from his reasons that that this striking similarity was a crucial reason why he convicted the appellant. The trial judge stated:
I have to conclude that there was and is remarkable similarity in the nature of the evidence that [the three complainants] revealed. Each of the three of them, not having spoken together at any time up until the trial as I understand it, stated that the events that occurred were at night time while they were in bed. The conduct was vaginal fondling, digital penetration, oral vaginal sex and with only words of a threatening nature being spoken. This consistency on the core elements of the allegations, despite no contact among them, to concoct similar evidence in my mind is quite significant.
[8] The appellant submits that the trial judge overstated the similarities. We disagree. Two complainants mentioned vaginal fondling. Two complained of digital penetration. Two complained of oral vaginal sex. While only VC mentioned threatening words following the incidents, all three testified that the appellant said nothing before or during the assaults.
[9] We return to the similarity issue below but before turning to that, we propose to deal with the remaining arguments as to the adequacy of the trial judge’s reasons.
(b) Rejection of the evidence of the appellant
[10] While it would have been preferable for the trial judge to have been more specific, we agree with the respondent that the trial judge’s reason for rejecting the evidence of the appellant is discernable. The appellant’s defence was an outright denial. It is clear from the reasons as a whole that the trial judge found that, when measured against the evidence of three complainants who quite independently gave evidence of remarkably similar incidents, the appellant’s version was not credible nor did it raise a reasonable doubt. The failure of the trial judge to say more is not fatal: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66.
- Did the trial judge reverse the onus of proof or apply a different standard to the evidence of the appellant?
[11] The trial judge correctly stated the burden of proof and the presumption of innocence, as well as the R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 formula, at the conclusion of his summary of the evidence and before he gave his reasons. We see nothing in his reasons that supports the contention that he reversed the onus or that he subjected the appellant’s evidence to a different level of scrutiny. He applied the three-part W.(D.)test in the concluding passage of his reasons for conviction. He rejected the appellant’s evidence where it conflicted with that of the complainants, and stated that the evidence, as a whole, did not leave him with a reasonable doubt and that he was satisfied that the Crown had proved all elements of the offences.
- Similar fact evidence
[12] As we have observed, the critical feature of this case that persuaded the trial judge of the guilt of the appellant was what the trial judge described as the “remarkable similarity” in the accounts of the three complainants.
[13] The issue of whether evidence was admissible across counts was not raised at trial. The Crown did not make a similar fact application and the appellant did not suggest at any time at trial that the evidence was not admissible across counts. Moreover, this issue was not raised as a ground of appeal in the notice of appeal, nor was it raised in the appellant’s factum. However it was raised in oral argument and given its significance in our overall assessment of the case we deal with it as follows.
[14] In our view, this issue should have been dealt with explicitly at trial. However, we are far from persuaded that any defect in the manner in which the issue was handled at trial caused any substantial wrong or miscarriage of justice in this case.
[15] In our view, had the issue been raised at trial, the inevitable result would have been a ruling that the evidence was admissible across counts. The similarities were striking. There was proximity of time and place – the incidents took place between 1964 and 1970, in the appellant’s home, all or virtually all in the appellant’s bedroom. The complainants were all female children related to the appellant. All were approached while sleeping and the sexual acts, while not always identical, were very similar, consisting of fondling (EK and RR), digital penetration (EK and RR) and oral sex (VC and RR). The assailant did not speak before or during the attacks and two of the complainants were restrained while being assaulted.
[16] As the trial judge observed, the three complainants came forward quite independently and had not discussed their allegations with each other before telling their stories to the police.
[17] Finally, the fact that this issue was only raised for the first time in oral argument before this court strongly suggests that there was never any serious question that the evidence was admissible across counts.
Disposition
[18] For these reasons, the appeal is dismissed.
“Robert J. Sharpe J.A.”
“David Watt J.A.”
“M.L. Benotto J.A.”