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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. A.F., 2016 ONCA 263

DATE: 20160412

DOCKET: C58002

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.F.

Appellant

Russell Silverstein, for the appellant

Kevin Rawluk, for the respondent

Heard: March 10, 2016

On appeal from the convictions entered on August 9, 2013 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] A.F. appeals from his convictions by a judge, sitting without a jury, for sexual offences involving his step-granddaughter. The offences include two counts each of sexual interference and invitation to sexual touching and one count each of sexual exploitation, sexual assault, and possession of child pornography. The sexual assault conviction was stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[2] The offences took place when the complainant was between 11 and 16 years of age.

[3] The credibility of the complainant and of the appellant was the central issue at trial. However, there was significant evidence confirming the complainant's account of the abuse, as is outlined below, including text messages to the complainant that were deleted from the appellant's cell phone, one of which instructed the complainant to "Get nude and get on top for a min".

[4] The appellant raises three issues on appeal. First, he submits that the trial judge erred by scrutinizing the appellant's evidence more strictly than the complainant's. Second, he submits that the trial judge misapprehended two aspects of the evidence. Third, he submits that the trial judge failed to properly apply the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The appellant also brings a motion to introduce fresh evidence.

[5] We reject these arguments and the appellant's motion to introduce fresh evidence for the reasons that follow.

(1) Different Standards of Scrutiny

[6] It is well established that it is difficult to succeed on a "different standards of scrutiny" argument on appeal. As Laskin J.A. explained in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:

It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.

In R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, Doherty J.A. said:

To succeed in this kind of argument, 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.

[7] The appellant contends that the trial judge failed to address inconsistencies in the complainant's evidence and uncritically accepted favourable interpretations of her evidence. In contrast, the trial judge wrongly discounted the evidence of the complainant's cousin, B., which supported the testimony of the appellant, and failed to consider the appellant's level of intelligence, his anxiety about testifying, or whether inconsistencies in his evidence could be attributed to bad memory.

[8] We disagree.

[9] The trial judge carefully scrutinized the complainant's evidence. He acknowledged inconsistencies in her testimony and determined how much weight they should carry. He provided clear and cogent reasons for accepting much – but not all – of the complainant's evidence. It was open to the trial judge to do so and there is no basis for this court to interfere with his findings.

[10] The same is true of the trial judge's evaluation of the evidence provided by the complainant's cousin. The trial judge acknowledged that the complainant's allegations of sexual abuse were not supported by her cousin's testimony that she had never seen anything improper between the complainant and the appellant, or experienced anything improper herself. The trial judge carefully considered the cousin's testimony and decided to give her evidence limited weight. The trial judge found that the cousin's testimony did not support a finding that the appellant lacked opportunity to do what was alleged or that he had made the same "get nude" statements to other grandchildren in circumstances that were not improper. It was open to the trial judge to make these findings, and his treatment of the cousin's evidence does not constitute legal error.

[11] The trial judge noted many problems with the appellant's testimony and found that he was tremendously evasive during cross-examination. The trial judge found that the appellant's testimony often did not make sense. It changed many times, concerning both unimportant and significant matters, and was often inconsistent with his statement to the police. These findings were open to the trial judge and are entitled to deference from this court.

[12] The trial judge's reasons reflect a careful consideration of the appellant's evidence and are well-founded in the trial record. There is no basis to conclude that the trial judge applied different standards of scrutiny to the evidence at trial.

[13] We reject this ground of appeal.

(2) Misapprehension of the Evidence

[14] Although the appellant's primary submission was framed as a "different standards of scrutiny" argument, in oral argument the appellant raised what he characterized as misapprehensions of the evidence by the trial judge. First, the appellant says the trial judge misapprehended the evidence concerning the colour of the appellant's pubic hair. Second, the trial judge misapprehended the evidence concerning the complainant's knowledge of distinguishing features on the appellant's body and the sort of underwear he wore. The appellant submits that the first error resulted in a failure to discount the complainant's credibility, while the second resulted in improper enhancement of the complainant's credibility.

[15] In her statement, the complainant described the appellant's pubic hair as grey, but at trial she testified that it was black and grey. A friend of the appellant testified that the complainant was present, along with several others, at a discussion at the appellant's home prior to trial and that the colour of the appellant's pubic hair was discussed. The friend testified that his wife asked the appellant's wife: "Is [the appellant] grey down there?", and that the appellant's wife answered: "No, he's not."

[16] The appellant's wife did not testify at trial. The only other evidence on pubic hair colour came from the appellant's family physician, who testified that the appellant had brown pubic hair.

[17] The trial judge did not misapprehend the evidence concerning pubic hair colour. He recognized that the complainant's inconsistency raised concerns about her credibility. The trial judge considered all of the evidence on the pubic hair issue, found that it did not assist him, and reduced the weight given to all of the pubic hair evidence as a result. That finding was open to the trial judge.

[18] It is clear, however, that the trial judge misapprehended the evidence concerning the complainant's knowledge of a scar on the appellant's hip. The trial judge rejected the appellant's testimony that the complainant would have seen the scar when she visited the appellant in hospital following hip surgery, but the complainant testified that she saw it at the hospital. The Crown concedes that this is a misapprehension of the evidence, and that there was no evidence confirming the complainant's testimony concerning either the brand of underwear worn by the appellant or the existence of a red spot on the appellant's leg close to his groin.

[19] However, it is not enough for the appellant to identify a misapprehension of the evidence in order to succeed. As Binnie J. stated in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2:

The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction" (citing R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 221).

[20] The test is not satisfied in this case.

[21] The trial judge found that the misapprehended evidence enhanced the complainant's credibility, but her credibility did not turn on that evidence. The trial judge provided many reasons for accepting the complainant's account of the abuse, including:

1. her compelling disclosure of abuse and her answers to open-ended questions during her statement to the police;

2. her maintenance of her allegations knowing that she was on her own and the possible harm it would cause to her family;

3. her demeanour;

4. the age-appropriate nature of her testimony;

5. her candour about receiving money from the appellant;

6. her absence of a motive to fabricate;

7. the good relationship between the complainant, her mother, and the appellant prior to the complainant making her disclosures;

8. her disclosure to her mother, after prodding, subsequent to her mother overhearing a phone conversation in which the appellant used a "sexy tone" and arranged to meet the complainant at a school; and,

9. significantly, the deleted text messages recovered from the appellant's cellphone including, in addition to the text message noted above, text messages from the appellant to the complainant saying "pics please"; "then kiss u all over"; "and for me" (sent one minute after the complainant asked the appellant for money); as well as a message from the complainant saying: "Don't say anything" in reference to her friend having her phone.

[22] Moreover, as noted above, the trial judge outlined many cogent reasons for rejecting the appellant's testimony, including his evasiveness during cross-examination. The appellant's testimony often did not make sense, changed many times, and was often inconsistent with his statement to the police.

[23] In summary, the misapprehension of the evidence did not play an essential part in the reasoning process resulting in the convictions. This ground of appeal must be rejected.

(3) W. (D.)

[24] The appellant's argument that the trial judge erred in applying the test in R. v. W. (D.) was not pursued in oral argument. We are satisfied the trial judge properly identified and applied the test. The trial judge reiterated that the burden of proof beyond a reasonable doubt remained on the Crown at all times. He rejected the appellant's evidence, did not have a reasonable doubt as a result of it, and concluded on the basis of the whole of the evidence that the case had been proved beyond a reasonable doubt.

(4) Fresh Evidence

[25] The appellant sought to adduce fresh expert evidence in relation to the colour of his pubic hair, indicating that it was brown and had not been dyed.

[26] In our view, the appellant fails to meet the requirements for the admission of fresh evidence set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. The evidence could have been adduced at trial with due diligence; it does not bear upon a decisive or potentially decisive issue at trial; and although it is credible, taken with the other evidence, it could not reasonably be expected to have affected the result. Although the complainant's evidence concerning the colour of the appellant's pubic hair was inconsistent, the trial judge acknowledged and addressed the inconsistency, and there was ample evidence to support the appellant's convictions.

[27] The appeal is dismissed.

"K. Feldman J.A."

"E.E. Gillese J.A."

"Grant Huscroft J.A."