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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. R.L., 2016 ONCA 455

DATE: 20160610

DOCKET: C60552

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. L.

Appellant

Tushar Pain and Lucas Rebick, for the appellant

Dena Bonnet, for the respondent

Heard: April 19, 2016

On appeal from the conviction entered by Justice Lawrence T. Feldman of the Ontario Court of Justice on January 15, 2015, with reasons reported at 2015 ONCJ 15.

Strathy C.J.O.:

I. Introduction

[1] The appellant was convicted of four counts of sexual assault and four counts of sexual interference for acts involving his nieces that occurred between 2002 and 2005. The sexual assault convictions were stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] The offences were alleged to have taken place when the complainants stayed for weekend sleepovers at an apartment shared by the appellant, his wife and the complainants’ grandparents. The complainants did not disclose the abuse until 2012.

[3] The trial lasted ten days spread over eleven months. The Crown’s case consisted of the evidence of the four complainants. The appellant and his wife testified. He called five additional witnesses, including two police officers and two other witnesses, described by the trial judge as “character witnesses”.

[4] The defence theory was that the complainants had colluded to fabricate stories of sexual abuse in order to punish the appellant and to get him removed from the home for his perceived abuse of their grandparents.

[5] The appellant asserts that the trial judge misapprehended material evidence and subjected the defence evidence to uneven scrutiny. For the reasons that follow, I would dismiss the appeal.

II. Background

[6] The complainants were triplet sisters, C1, C2 and C3, and their sister, C4. The triplets were between 7 and 11 years old at the time of the events. C4 was four years older.

[7] The girls were close to their grandparents, with whom they had lived in Guyana before they immigrated to Canada with their parents in 2001. The grandparents came to Canada in 2003. They lived in an apartment occupied by their daughter and her husband (the appellant), another daughter and occasional tenants.

[8] The offences were alleged to have occurred during the girls’ sleepover visits. Generally, two girls stayed over at the same time, sleeping in their grandparents’ bedroom. These visits began in 2003 and ended in 2005, due to family frictions, not directly related to the matters at issue.

[9] At the time of trial, the triplets were 18 years old and their older sister was 21. They described, in varying detail, incidents of the appellant groping their thighs with his hands and touching their breasts and vaginas with his hands and mouth. The touching included some incidents of digital penetration.

[10] The incidents were alleged to have occurred in various locations of the apartment, when other residents were not in the immediate vicinity or were out of the apartment or sleeping. Many of the events were alleged to have taken place in the bedroom shared by the appellant and his wife.

[11] With one exception, there were no witnesses to any of the incidents. The exception was an assault described by C1 as having occurred when she was about 10 years old. She said that the appellant came into the bathroom after she had taken a shower, lifted her onto the toilet seat, removed her towel and sucked her nipples. At some point he stopped and left the bathroom.

[12] C2 testified that she had witnessed the incident while it was in progress. She described opening the door of the bathroom and seeing her sister standing on the toilet seat while the appellant sucked her nipples. She said nothing, left the room, and did not mention the incident to C1 until several years later when the sisters discussed their experiences after C1 disclosed the abuse to her guidance counsellor.

[13] C1 testified that at some point she and C3 confided to one another that the appellant had been abusing them. They agreed that if either of them were in a room alone with the appellant the other would go back into the room to make sure that her sister was not left alone with him. C4 testified that she too would stay close to whichever sister accompanied her on weekend visits.

[14] C1 also testified that at some point she discussed the abuse with both C2 and C3 and told them they should tell their parents. The others objected because they were concerned that their parents would become more overprotective than they already were or that they would think differently of them.

[15] C1 disclosed the abuse to her guidance counsellor in 2012, when she was 16 years old. The counsellor told her to discuss the matter with her sisters over the March break. C1 testified that she and her siblings discussed the matter, but did not want to report it to their parents. After the break, the counsellor met with all three triplets, at which time C2 and C3 disclosed that they too had been abused. The counsellor encouraged them to disclose the abuse to their parents. She then called the police. After speaking to their parents, all four sisters gave videotaped statements to the police. C4 told the police that she too had been abused. The appellant was charged with sexual assault and sexual interference.

III. The trial judge’s reasons

[16] The trial judge began by noting Wilson J.’s observation in G.B., A.B. and C.S. v. The Queen (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.) concerning the need for trial courts to apply common sense in dealing with the testimony of young children by not imposing “the same exacting standard on them as it does on adults”, without lowering the standard of proof. He also noted that, when assessing the evidence of children, “it is important to take account of that individual’s mental stage and intellectual level, comprehension and ability to articulate her recollection, while at the same time maintaining the traditional standard of proof.” Here, he referred to R. v. W.(R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.).

[17] He then reviewed the evidence of the complainants and the manner in which their evidence came to light.

[18] After reviewing the Crown evidence, the trial judge examined the evidence of the defence. The appellant testified. He denied the events of abuse and said that he had never been alone with any of the girls. He was hardly ever around when the girls were in the apartment, even on weekends, because he was usually working. He produced a letter from his employer concerning his hours of work, indicating that he worked on Saturdays when required. He said that the girls were not allowed in the bedroom he shared with his wife.

[19] The appellant’s wife also testified. She said that she was always present when the appellant was at home and said the girls spent most of their time in their grandparents’ room. She confirmed her husband’s evidence that the girls were never alone in the matrimonial bedroom.

[20] Other witnesses, including a relative and two friends of the appellant, testified. A police officer testified regarding an investigation of complaints of abuse of the grandparents, which were uncorroborated.

[21] The trial judge then identified the positions of the parties, noting the appellant’s position that the triplets colluded in fabricating false allegations of sexual assault “motivated some 9 years after they stopped visiting the [appellant’s] apartment by a collective animus to punish the [appellant] for abusing their grandparents in seeking to have the police remove him from his residence.” This was done, according to the theory, without the involvement of the girls’ parents, led by one of the triplets, who concocted an unreliable chronology and buttressed by the evidence of the older sister who joined in the conspiracy.

[22] The trial judge then set out his findings of credibility. He considered the complainants’ evidence credible, straightforward and sincere and gave reasons for these conclusions. He noted that they appeared to be reluctant witnesses and found that their reluctance to disclose the abuse to their parents was due to embarrassment and their fear of the consequences. There were inconsistencies in detail and in recollection between their evidence, but he regarded their evidence as consistent in relation to the material facts. Their reliability was enhanced by their testimonial demeanour. He rejected the assertion that their testimony was the result of a conspiracy to concoct false allegations, many years later, in order to separate their estranged grandparents from the appellant.

[23] The trial judge said there was no lack of opportunity for the appellant to have committed the offences and regarded his evidence to the contrary as contrived. Accordingly, he placed little weight on this evidence. He found the employer’s letter unhelpful in determining how often the appellant worked on Saturdays and whether he worked on Sundays. He also noted that some of the alleged offences occurred in the evening or at night. Presumably, the appellant’s work schedule would not have kept him away from the girls at these times.

[24] Nor was the trial judge prepared to rely on the evidence of the appellant’s wife. He found her evidence lacking in objectivity. She exaggerated how often the appellant worked on weekends and said that she was always home when the appellant was, even though she was sometimes out shopping on weekends. In the trial judge’s view, her evidence that the bedroom door was locked out of habit was contrived and self-serving.

[25] The trial judge then set out the burden of proof and the reasonable doubt standard. He referred to the principles established in several authorities, including R. v. Starr, 2000 SCC 40, and R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.

[26] Finally, he set out his reasons for accepting the evidence of the complainants and rejecting the evidence called by the appellant, and explained why he was not left in reasonable doubt that the appellant had committed the offences alleged. He rejected the assertion that the complainants had colluded. In contrast, he found the testimony of the appellant and his wife to be “transparently coordinated”.

IV. Grounds of Appeal

[27] The appellant asserts two grounds of appeal: misapprehension of the evidence and uneven scrutiny of the evidence.

A. First ground: Misapprehension of the evidence

[28] The appellant says the verdict cannot stand because the trial judge misapprehended essential parts of the evidence of the defence and the Crown. I will first identify the alleged misapprehensions. I will then discuss and apply the applicable principles.

(1) Defence evidence

[29] The misapprehension of the defence evidence related to the appellant’s evidence concerning his lack of opportunity.

(a) Hours of work

[30] The first complaint is that the trial judge made credibility findings adverse to the appellant as a result of his misapprehension of his evidence about his hours of work.

[31] The appellant testified that he worked for two companies after coming to Canada. Between 2002 and 2005 he worked at Fincore Industries, where he worked Mondays through Saturdays and occasional Sundays, when there was a demand. He then worked at Deacro Industries from October 2005 until 2007. There he worked weekdays and some Saturdays, but not Sundays. He produced a letter from Deacro which indicated that he had worked Saturdays when asked to do so, apparently when production requirements made it necessary.

[32] The trial judge noted the appellant’s evidence that he worked “some Sundays.” His wife testified that he worked on weekends “most of the time”. The trial judge found the wife’s evidence a “likely exaggeration”, given the content of the employer’s letter, which made no reference to Sunday work and noted that Saturday work was limited to production need.

[33] The trial judge also found that the employer’s letter was unhelpful, given it did not address the appellant’s work prior to 2006 or whether he worked at all on Sundays. He noted that a number of the alleged offences occurred in the evening or at night, so, contrary to the appellant’s “implied assertion” that there was no opportunity, there was in fact no lack of opportunity. The trial judge found the appellant’s evidence and his attempt to minimize his contacts with the complainants to be contrived and said he would put little weight on it.

[34] The appellant says these criticisms were unfair and were based on a misapprehension of the evidence. The indictment covered a wide period, from 2002 to 2010, and it was reasonable for him to produce evidence of his hours of work during that time. Moreover, his employment at Deacro postdated the offences for which he was ultimately convicted, and he had never suggested that he worked Sundays at Deacro.

(b) “Locking” the bedroom door

[35] The other complaint of misapprehension of the defence evidence related to the evidence of both the appellant and his wife that their bedroom was off limits to the complainants. The trial judge noted that both the appellant and his wife described their bedroom as being “locked” all the time. They had, in fact, used the word “locked” in relation to their bedroom door, but they clarified that the door was not actually locked when they were present in the apartment. The appellant said the bedroom remained off limits to the complainants, and his wife explained that the door remained shut even when it was unlocked.

[36] The appellant says the trial judge was unfairly critical of his evidence because he misapprehended his evidence and his wife’s evidence on this point.

(2) Crown evidence: The “March break meeting”

[37] The appellant also claims that the trial judge misapprehended the Crown evidence in one particular respect. He found that C2 had told C1 that she had observed the incident in the bathroom and that she made this revelation for the first time at the “March break meeting”, and he found that this supported C1’s evidence. The appellant says there was no evidence of any March break meeting, although there was a meeting with the guidance counsellor after the March break.

(3) Discussion

[38] In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (O.C.A.), this court observed that the assessment of an argument based on misapprehension of evidence depends on the nature and extent of the misapprehension andits significance to the trial judge’s verdict. Where a judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, the verdict is not a “true” verdict and cannot stand. The Supreme Court adopted this approach in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.

[39] In my view, the appellant’s complaint that the trial judge misapprehended the defence evidence must be considered in the broader context of the appellant’s denial of opportunity to commit the offence and his evidence that he was never alone with any of the complainants. The context includes the evidence of the appellant’s wife to the same effect.

[40] This evidence painted a picture of a man who was always working, a wife who was never out of the home, a bedroom that was forbidden territory to their young nieces, with a door that was always closed. The trial judge, who heard and saw the witnesses as they were challenged on this evidence, was entitled to find that the evidence was exaggerated and contrived. His misstatements of the evidence were not in relation to matters of substance and were not essential to his reasoning process.

[41] Nor do I see any significance in the trial judge’s misstatement of the Crown evidence concerning the “March break meeting.”

[42] The trial judge found that C1’s evidence about the bathroom incident was supported by C2’s evidence, which she kept to herself until she informed C1 when “all the sisters discussed these matters in the basement of their home over the March break following a meeting with [the guidance counsellor] who had encouraged her to disclose the abuse.” He found that C2’s evidence materially supported C1’s story. In fact, C2’s evidence was that this disclosure was not made to her sisters until the second meeting with the guidance counsellor after the March break.

[43] While the trial judge was mistaken about the timing of the disclosure, this does not affect the substance of his conclusion or the reality that C2’s evidence was confirmatory of C1’s evidence. C2 testified that she did not think her sister saw her come into the bathroom and C1 testified she had not seen her sister enter the bathroom. There was evidence that the girls did not discuss the specifics of the abuse. The error in the trial judge’s recollection of the timing of the disclosure was inconsequential.

B. Second ground: Uneven analysis of the evidence

[44] The appellant says the trial judge erred in law by subjecting his evidence to a stricter standard than the Crown’s evidence. In particular, he says that the trial judge erred in treating inconsistencies in the complainants’ evidence as related to peripheral matters.

[45] The Crown submits in reply that this complaint must be considered in the context of the defence theory of fabrication and the manner in which the trial unfolded. After hearing and observing the evidence of the four sisters, the trial judge found “[t]here was nothing in the uneven recollection by the complainants of the sexual violations that permitted a hint of collaboration”.

[46] It is, of course, an error for a trial judge to subject the accused’s evidence to a stricter standard of scrutiny than the evidence of the Crown: R. v. T. (T.), 2009 ONCA 613, at paras. 28 and 31. In R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (O.C.A.), Doherty J.A. observed that to succeed in arguing that the trial judge subjected the evidence of the accused to a stricter standard than the evidence of the Crown, “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.”

[47] As Laskin J.A. observed in R. v. Aird, 2013 ONCA 447, at para. 39, this is a difficult argument to make for two reasons. First, a trial judge’s findings of credibility attract a high degree of deference. Second, the court sometimes views the argument as a “veiled invitation to reassess the trial judge’s credibility determinations.”

[48] I do not accept the argument that the trial judge ignored material inconsistencies in the complainants’ testimony, while subjecting relatively inconsequential issues in the appellant’s and his wife’s testimony to “granular and unforgiving” scrutiny.

[49] The appellant does not challenge the trial judge’s finding that the complainants did not collude. The trial judge observed that the complainants’ uneven recollection of the sexual assaults did not permit a “hint of collaboration.”

[50] These findings were based on the trial judge’s assessment of the evidence of all the complainants. He had the distinct advantage of hearing and seeing the evidence of the four complainants as they testified about abuse that had occurred more than seven years earlier. He considered their evidence to be credible, but was not blinded to the inconsistencies. It is worth noting that even defence counsel described the complainants as “a little less mature, a little less articulate, a little less, perhaps, educated than other girls their age”. He added: “They’re more simple-minded, at least that’s certainly the way their evidence came off to me, and particularly the older, the oldest of the siblings.” Some inconsistency in the complainants’ recollection of events that transpired years earlier, when they were young children, is unsurprising.

[51] The trial judge found that the inconsistencies in the complainants’ evidence related to peripheral matters and could be explained by the passage of time and the frailties of youthful recollection. In contrast, the issues in the appellant’s and his wife’s testimony were not related to peripheral matters. The appellant’s work schedule and whether he and his wife habitually barred the complainants from their bedroom spoke directly to the appellant’s opportunity to commit the offences. The appellant has not demonstrated that the trial judge applied different standards in assessing the evidence of the appellant and the complainants. I see no merit to this ground of appeal.

V. ORder

[52] For these reasons, I would dismiss the appeal.

“G.R. Strathy C.J.O.”

“I agree E.E. Gillese J.A.”

“I agree G. Pardu J.A.”

Released: June 10, 2016