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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. T.H., 2016 ONCA 439

DATE: 20160603

DOCKET: C61386

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. H.

Appellant

Delmar Doucette, for the appellant

Dayna Arron, for the Crown respondent

Heard: May 30, 2016

On appeal from the conviction entered on November 28, 2011 by Justice D.R. McDermid of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of two counts of sexual touching and two counts of sexual assault. The complainants were the children of S.T., with whom he was in a romantic relationship. They were five and seven years old at the time of the offences.

[2] The appellant submits that the trial judge erred by:

(i) improperly rejecting the appellant’s evidence based on his demeanour as a witness;

(ii) improperly rejecting the appellant’s evidence because of his supposed minimization of opportunity to commit the offences, when he admitted that he had the opportunity to commit them;

(iii) failing to properly analyze the evidence of the complainant K.T., including by employing a logical fallacy regarding the source of her knowledge of sexual activity; and

(iv) failing to properly analyze the evidence of the complainant B.T., including by failing to give proper weight to the coercive interview techniques that were used to obtain B.T.’s s. 715.1 statement.

[3] We would not give effect to any of these grounds of appeal for the following reasons.

[4] First, testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: R. v. O.M., 2014 ONCA 503, at para. 34. Although the trial judge found the appellant’s evidence to be “clinical and strange”, he also stated that it might just be a reflection of the appellant’s “normal personality”. On a review of the trial judge’s reasons, it is clear that demeanour was only one of the factors the trial judge considered when assessing the whole of the evidence. It was not dispositive of the trial judge’s credibility assessment.

[5] Second, although the appellant admitted that he had the opportunity to commit the offences his testimony was replete with attempts to distance himself from situations, circumstances, and opportunities to have committed the offences. In our view, the evidence amply supported the trial judge’s finding that the appellant attempted to minimize the opportunities that were available to him to commit the offences.

[6] Third, we see no error in the trial judge’s consideration of K.T.’s evidence. The trial judge carefully considered her evidence, including internal inconsistencies and inconsistencies with her brother’s testimony, and concluded that it was worthy of belief. This finding was open to the trial judge.

[7] We reject the submission that the trial judge erred in concluding that K.T.’s sexual knowledge of ejaculation was the result of the appellant’s repeated sexual abuse, not her limited exposure to pornography. The appellant’s submission that the trial judge engaged in logical fallacy in his treatment of K.T.’s evidence overlooks her detailed and compelling account regarding her observation of ejaculate during the sexual assaults. The trial judge’s finding that KT’s description of the ejaculate resulted from her personal experience was a fair inference from the totality of the evidence.

[8] Fourth, we also see no error in the trial judge’s careful review of the evidence of B.T. The trial judge acknowledged that the officer interviewing B.T. pushed him hard to tell the truth. However, he also noted that B.T. was told that the officer was not there to force him to do anything he did not want to do. In re-examination, B.T. clarified that he would not say something just because the police wanted him to. Based on all of the evidence, the trial judge reasonably concluded that B.T. was truthful in his testimony.

[9] The appeal is dismissed.

“G.R. Strathy C.J.O.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”