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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Langevin, 2016 ONCA 412

DATE: 20160530

DOCKET: C60085

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Langevin

Appellant

Daniel Langevin, acting in person

Matthew Gourlay, duty counsel

Craig Harper, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on November 28, 2014 and the sentence imposed on January 21, 2015 by Justice Nancy M. Mossip of the Superior Court of Justice.

ENDORSEMENT

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of counts of sexual interference and sexual assault arising out of the same incident. The trial judge applied the principles of Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and entered an interim stay of the conviction of sexual assault.

[2] The trial judge sentenced the appellant to imprisonment for a term of 12 months to be followed by a period of probation for 2 years. The sentence imposed also included several ancillary orders.

THE BACKGROUND FACTS

[3] The events upon which the Crown relied to establish the appellant’s guilt are said to have occurred in the cab of his truck during the evening of Canada Day, 2013 when only the appellant and complainant were inside the truck. The vehicle was parked in an area adjacent to a housing complex.

[4] The conduct alleged to constitute the offences charged consisted of hugging and kissing. Both the appellant and complainant were fully clothed. The appellant was 44 years old. The complainant was 11.

The Case for the Crown

[5] The case for the Crown at trial consisted of the testimony of three adult witnesses who recounted their observations of the conduct of the appellant and complainant in the cab of the appellant’s truck around 9 p.m. on Canada Day, 2013.

[6] Each witness had an unobstructed view of the relevant events. Each moved closer to the truck to confirm their initial observations. Each described repeated kissing on the lips, accompanied by hugging. Each, in his or her own way, characterized the manner in which the appellant and the complainant kissed. One described it as like he would kiss his wife. A second characterized it as not the way in which an adult would kiss a child. And the third likened it to the way in which a boyfriend and girlfriend would kiss.

[7] The complainant was not called as a witness for the Crown.

The Defence Case

[8] The defence case comprised the testimony of the appellant, the complainant’s mother and the complainant.

[9] The complainant and her mother gave evidence that the complainant returned to their home at around 5:00 or 5:30 p.m. on Canada Day, 2013. She had been with the appellant during the afternoon but he brought her home around meal time. The complainant remained at home for the balance of the evening.

[10] The appellant acknowledged that he gave the complainant “a peck on the nose” and a hug when she left his truck on the afternoon of Canada Day, 2013 to join others, including a Crown witness, at a picnic table. She remained at the picnic table for about an hour, then returned to his truck. The appellant drove her home, arriving there at about 5 p.m. He was not with her later in the evening.

[11] The appellant denied kissing the complainant on the lips. He also said that one of the witnesses who testified for the Crown was not in the vicinity on Canada Day. He rejected the claim of another Crown witness that she had approached the cab of his truck and had asked what he was doing.

[12] The complainant acknowledged that the appellant hugged her and kissed her forehead while they were seated in the cab of his truck. She denied talking to one of the Crown witnesses at the picnic table.

The Positions of the Parties at Trial

[13] Trial counsel for the Crown (not Mr. Harper) urged the trial judge to believe the testimony of the three adult witnesses about what they saw taking place in the cab of the appellant’s truck. Their view was unobstructed. They were independent witnesses who bore neither the appellant nor the complainant any animus. Any inconsistencies in their evidence were beside the point of the core features of their testimony. None were cross-examined about the substance of their allegations.

[14] The trial Crown entreated the trial judge to reject, as unworthy of belief, the appellant’s claim that he was not with the complainant after 5 p.m. on Canada Day and, at all events, did not engage in the behaviour they described at any time. Further, the trial Crown submitted, the complainant was not a reliable witness, her evidence contaminated by her unwavering dedication to the appellant. For similar reasons, the trial Crown invited the trial judge to reject the evidence of the complainant’s mother whose testimony was coloured by her own desire to rekindle her relationship with the appellant.

[15] Trial counsel for the appellant (not Mr. Gourlay) advanced three discrete arguments to the trial judge.

[16] First, counsel submitted that inconsistencies on material issues in the testimony of the three eyewitnesses left the case for the Crown well short of the standard of proof required in a criminal case.

[17] Second, counsel argued that the appellant’s testimony, indeed the defence evidence as a whole, was credible and warranted an acquittal on either or both of the first or second step of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[18] Third, counsel contended that even if the trial judge were to accept the eyewitness testimony adduced by the Crown, the evidence failed to establish an essential element of each offence charged – that the conduct occurred in circumstances of a sexual nature or was for a sexual purpose.

THE APPEAL FROM CONVICTION

The Argument

[19] In this court, as duty counsel, Mr. Gourlay raised a single ground of appeal. He submitted that the trial judge failed to adequately analyze the evidence to determine whether it established the essential elements of each offence charged. He fastens upon the requirement in sexual assault that the assault occur in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. In respect of the count charging sexual interference, Mr. Gourlay contends that the trial judge erred in failing to adequately consider whether the evidence established that the kissing was “for a sexual purpose” as required by s. 151, or occurred in circumstances of a sexual nature as required by s. 271 of the Criminal Code.

Discussion

[20] The focal point of the submissions on behalf of the parties is a single paragraph in the lengthy reasons of the trial judge. It is helpful to begin by setting out that paragraph before turning to a consideration of its adequacy.

The Reasons of the Trial Judge

[21] The trial judge began her reasons with a lengthy witness-by-witness summary of the evidence adduced at trial, followed by a recital of the positions advanced by the parties in their closing arguments. Reminding herself of the principles stated in W.(D.) and other authorities that have followed its lead, the trial judge explained how she applied those principles to the evidence adduced at trial. In general terms, she accepted the evidence of the eyewitnesses about the fact, nature and circumstances of the kissing in the appellant’s truck and rejected the defence evidence that the conduct of which the eyewitnesses testified never took place.

[22] The trial judge concluded her reasons by stating her conclusion about the adequacy of the evidence to establish the essential elements of sexual interference and sexual assault. She said:

On the whole of the evidence I am satisfied beyond a reasonable doubt of the guilt of D.L. of the two counts in the indictment. There can be no doubt that my acceptance of the Crown witnesses testimony, in particular that of Ms. Clavette who saw at close proximity, D.L. and E.B. hugging and kissing on the lips, like a boyfriend and girlfriend, that a sexual assault took place, and that the touching of E.B. by D.L. by hugging and kissing E.B. on the lips, as described, was touching for a sexual purpose. Viewed objectively, in the light of all the circumstances, it is clear that the conduct of D.L. in hugging and kissing E.B. as described constituted an assault of a sexual nature and this touching as described was for a sexual purpose.

Analysis

[23] As we will explain, we would not give effect to the submissions of duty counsel.

[24] We begin with the observation that whether the kissing that the trial judge found occurred here was for a sexual purpose, or took place in circumstances of a sexual nature, was largely a question of fact for the trial judge to determine by an examination of all the circumstances. As with any essential element of an offence, proof of these essential elements may be made by direct evidence, by circumstantial evidence or by both types of evidence in combination.

[25] Second, appellate courts are disentitled to interfere with the findings of fact made and the factual inferences drawn by a trial judge unless those findings are clearly wrong, unsupported by the evidence or otherwise unreasonable: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9. We are unable to conclude that the trial judge made any error of law or a palpable or overriding error fact with respect to the sexual purpose of the kissing or the sexual nature of the circumstances in which it occurred.

[26] Third, this is not a case of a single peck on the cheek, or even a solitary kiss on the lips. What the trial judge found occurred here were repeated acts of kissing between a 44 year old man and an 11 year old girl characterized by witnesses as similar to those between spouses or lovers. This finding of fact, available on the evidence adduced at trial, was sufficient to sustain a finding of sexual purpose on the count of sexual interference and meet the objective standard required for sexual assault.

[27] Fourth, while the reasons of the trial judge on this issue may fairly be characterized as economical, they do not foreclose meaningful appellate review when read as a whole. Recall as well that the claim of inadequate proof of the sexual nature of the kissing was not the principal defence advanced at trial. The defence, supported by the sworn testimony of the appellant, the complainant and her mother was that neither the appellant nor the complainant were at the place described by the witnesses when the kissing was alleged to have occurred. While this defence does not reduce the Crown’s burden of proof or lessen the standard of proof required, it does put the reasons of the trial judge on the issue in their proper perspective on appellate review.

[28] The appeal from conviction is dismissed.

THE APPEAL FROM SENTENCE

[29] The appeal from sentence was not vigorously pressed. We find no error in the sentence imposed.

[30] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”