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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. D.J.L., 2015 ONCA 333

DATE: 20150512

DOCKET: C58447

Gillese, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.J.L.

Appellant

Jill D. Makepeace, for the appellant

Avene Derwa, for the respondent

Heard: May 8, 2015

On appeal from the conviction appeal from the decision by Justice Helen M. Pierce of the Superior Court of Justice, dated December 4, 2013.

Lauwers J.A.:

[1] Following a judge-alone trial, the appellant was convicted of sexual interference based on a single act of sexual intercourse forced on the 13-year-old daughter of his common law spouse. He was acquitted of sexual assault based on the allegation that he fondled the complainant’s buttocks on numerous occasions. The appellant was sentenced to three years’ incarceration, and appeals his conviction.

[2] The appeal focused on three issues: First, whether the trial judge failed to consider conflicts in the complainant’s evidence in assessing her credibility; second, whether the trial judge applied different standards of scrutiny to the evidence of the appellant and the complainant; and, third, whether the trial judge’s approach to the evidence on the count of sexual assault can be reconciled with her approach to the evidence on the rape count.

Problems with the Complainant’s Evidence

[3] The appellant argues that the trial judge took a “forgiving” and “lenient” approach to the complainant’s evidence, and challenges four central findings made by the trial judge, or the “pillars” that supported her acceptance of the complainant’s evidence.

[4] The first was her mother’s evidence that upon her return from a lengthy hospital stay, after the date of the alleged rape, the complainant’s behaviour changed. In our view, the trial judge took a measured approach to the mother’s evidence. She recognized that, although the mother’s assessment of the complainant’s behaviour before the alleged rape might have been too rosy, the evidence showed a dramatic escalation of the complainant’s misbehaviour after her mother’s return from the hospital. I see no contradiction in this approach, only realism.

[5] The second finding was that the appellant was controlling and coercive, which supports the concept that the appellant would force intercourse on the complainant. The evidence shows that even though the appellant was not to have any disciplinary responsibility for his stepdaughter, he nonetheless monitored her for smoking by following her surreptitiously to the local swimming pool and by participating in the searches of her room. The appellant argues that the finding does not flow from the evidence. To the contrary, this evidence amply supports and explains the trial judge’s finding.

[6] The third finding was that the complainant’s relationship with the appellant was poor. The trial judge relied on the evidence about the complainant’s complaint to the Children’s Aid Society as support for this finding. Although the complaint itself related to the mother’s slapping the complainant, it was open to the trial judge, based on the information disclosed as part of the narrative, to find that the relationship between the complainant and the appellant was poor.

[7] Finally, the appellant argues that the trial judge failed to properly take into account the complainant’s admitted dishonesty and her practised lying from an early age, in assessing her evidence. The trial judge accepted the complainant’s admission of her previous dishonesty and her assertion that she is now a truthful person. The trial judge noted:

Generally she answered hard questions at trial such as her supplier of marijuana in a forthright and unvarnished way. In my view, her evidence about the assault was internally consistent. While it was not a detailed account, any consistencies can be attributed to the passage of time.

[8] The appellant attacked this observation by focusing on only a single “hard question”, which was the name of the complainant’s drug supplier. He argues that the reasoning is circular, since the truth of the observation depends on an implicit determination that the complainant provided the actual name of her supplier, and cites R. v. V.Y. 2010 ONCA 544 at paras. 22-23. I note, however, that the trial judge did not depend on one observation only, since she used the words “hard questions”. The evidence shows that the complainant answered more hard questions, for example, about her heavy drug use, her deceit, and her attempts to mutilate and kill herself. The trial judge’s reasoning was not circular but was rooted in the evidence.

[9] I see no error in the trial judge’s approach to the complainant’s evidence or in her acceptance of the complainant’s testimony about the rape.

Different Standards of Scrutiny

[10] To succeed on the second ground, that the trial judge applied different standards of scrutiny to the evidence of the appellant and the complainant, as this court noted in R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 at para. 59:

The appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[11] The appellant argues that the trial judge’s assessment of his evidence was unduly strict, particularly since his denials of the complainant’s allegations were not challenged in cross-examination. I disagree.

[12] The evidence does not show that his testimony was subjected to unduly strict assessment. Three elements of the evidence were telling to the trial judge. The first was that the appellant followed the complainant to the local outdoor swimming pool on a number of occasions. The trial judge considered this conduct to be sexually oriented. She noted that the complainant and her friends were wearing bathing suits at the pool. She then added: “Making note of the underwear controversy, his excuse that he was attempting to prevent her smoking rings hollow.” Instead she saw this conduct as a form of “sexual grooming”. She then added:

She was available to him after school. He could test her resistance by fondling her buttocks in the guise of checking her underwear. This is plausible. His conduct in following her was inappropriate.

Given the evidence before her, the inferences that the trial judge drew were available.

[13] The second concerned the opportunity that the appellant might have had to assault the complainant after school. The trial judge did not accept the appellant’s testimony about the frequency with which the complainant arrived home before her siblings. The trial judge notes in her decision that the appellant:

[T]estified that in the seven years he lived with the family there was maybe twice that [the complainant] was home from school before her brother and then only for a few minutes. I could not accept his evidence on this point. The evidence establishes that there were times when [the appellant] was home alone with [the complainant].

The trial judge amply explains this finding.

[14] Third, the complainant testified in examination-in-chief that he spent 75% of his time at the hospital during the weeks that the mother was admitted, again reducing the opportunity he might have had to commit the rape. He then qualified his original estimate in chief during cross-examination. The trial judge said: “I find this to be an exaggeration.” This was not an unreasonable finding.

The trial judge’s doubt on the sexual assault count should have applied to the rape count as well

[15] The appellant challenges the trial judge’s credibility findings based on what the appellant argues is an unresolved contradiction: the complainant’s evidence was not capable of supporting a conviction on the sexual assault charges, because it was contradicted by the mother’s evidence, but the complainant’s evidence was capable of supporting a conviction on the rape count, even though it was an uncorroborated allegation.

[16] The count of sexual assault related to complaints that the appellant would fondle the complainant’s buttocks while ostensibly checking that she was wearing proper underwear, as required by her mother, and not thongs. The appellant testified that he supported the mother’s ban on thongs: “He did not believe thong underwear was appropriate because when a child bent down ‘half their rear end shows’.”

[17] The trial judge’s decision to acquit the appellant on count one was not on the basis of the appellant’s evidence, which she pointedly stated that she did not believe, but on the basis of conflicts in the evidence between the mother and the complainant. The mother could only recall one incident in which the complainant’s thongs were confiscated, as against the complainant’s account that she got into trouble over wearing thongs more often because of the appellant’s reports to her mother after he fondled her buttocks and discovered she was wearing thongs. The conflicts in the evidence between the mother and the complainant raised a reasonable doubt in the trial judge’s mind on the count of sexual assault alone.

[18] By contrast, the trial judge used the appellant’s evidence about the thongs in assessing his evidence relating to the rape, as showing a problematic sexual interest in the complainant. There is, in my view, no contradiction between the trial judge’s reasonable doubt on the fondling count, and her satisfaction that the rape count had been proved beyond a reasonable doubt.

[19] I would, therefore, dismiss the appeal.

Released: May 12, 2015 “EEG”

“P. Lauwers J.A.”

“I agree E.E. Gillese J.A.”

“I agree K. van Rensburg J.A.”