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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. C.M., 2015 ONCA 101 Date: 2015-02-12 Docket: C58607

Before: Doherty, Cronk and LaForme JJ.A.

Between:

Her Majesty the Queen Respondent

and

C.M. Appellant

Counsel: Stephen Whitzman, for the appellant Lucy Cecchetto, for the respondent

Heard and released orally: February 9, 2015

On appeal from the convictions entered on July 31, 2013 by Justice B. O’Marra of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted of three counts of touching for a sexual purpose. He appeals against his convictions on the sole ground that the trial judge erred in his assessment of the reliability of the complainant’s evidence.

[2] During oral argument, the appellant focused particularly on two issues. He argued that the trial judge erred: 1) by rationalizing the complainant’s minimal initial disclosure of the appellant’s abusive acts, based on assumptions that were unsupported by expert or other evidence; and 2) by failing to properly consider and assess inconsistencies in the complainant’s evidence regarding what the appellant contends were the complainant’s “recovered memories” of the appellant’s abusive conduct.

[3] In our view, these arguments fail and the appeal must be dismissed. We say this for the following reasons.

[4] First, the trial judge’s reasons fairly set out the evidence of the complainant’s initial and subsequent disclosures of the appellant’s abusive acts. The complainant’s account of the alleged events, as disclosed to various people at various times, was confirmed in part by her mother’s testimony at trial.

[5] Second, we do not accept the appellant’s submission that the trial judge erred by concluding that, “[I]t would be difficult for a child to understand the type of physical contact [the appellant] had with [the complainant].” Read in context, this comment was not intended to reference the complainant’s understanding of events at any particular point in time but, rather, her appreciation of events as they occurred.

[6] Third, the evidentiary record does not support the appellant’s claim that this is a case of recovered memories prompted by the complainant’s intermittent counselling over the years, or her own internet research regarding sexual abuse. To the contrary, on our reading of the evidence and the trial judge’s findings, the complainant’s memories of the events in question did not all come flooding back to her late in life. Rather, the complainant lived with these memories for most of her life but chose, for reasons articulated by the trial judge, to disclose them at a later date.

[7] Finally, the trial judge provided clear and cogent reasons for his findings that the complainant’s account of events was both credible and reliable. He expressly recognized that he should assess the complainant’s testimony with particular caution, given the historical nature of the appellant’s sexual misconduct. The reasons confirm that the trial judge did scrutinize the complainant’s evidence with care, including the inconsistencies in her testimony identified by the defence.

[8] Absent palpable and overriding error, the trial judge’s credibility and reliability findings attract significant deference from this court. We see no reversible error in those findings or in the trial judge’s treatment of the complainant’s evidence as a whole.

[9] Accordingly, the appeal is dismissed.

“Doherty J.A.” “E.A. Cronk J.A.” “H.S. LaForme J.A.”