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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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; 2005, c. 43, s. 8(3)(b).

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. Brunton, 2016 ONCA 752

DATE: 20161018

DOCKET: C60010

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Brunton

Appellant

Murray D. Segal, for the appellant

Lucy Cecchetto, for the respondent

Heard: March 17, 2016

On appeal from the conviction entered on October 29, 2014 and the sentence imposed on January 30, 2015 by Justice Dale M. Parayeski of the Superior Court of Justice, sitting without a jury.

Simmons J.A.:

A. INTRODUCTION

[1] Following a judge-alone trial, the appellant was convicted of one count of sexual assault and one count of sexual interference. The trial judge stayed the sexual assault charge under the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and sentenced the appellant to 21 months’ imprisonment plus three years’ probation.

[2] The complainant described the incident giving rise to the charge as involving one act of fellatio by the appellant, her mother’s boyfriend at the time of the incident.

[3] The complainant, who was 12 years old at the time of trial, gave evidence based on a promise to tell the truth. She said she was three or four when the incident happened. She first disclosed it when she was nine years old.

[4] In addition to the complainant, the Crown called three other witnesses at trial. The complainant’s mother testified about the circumstances of the complainant’s disclosure. A worker from the Children’s Aid Society (“C.A.S.”) and a police officer gave evidence about comments the appellant made when the C.A.S. initially contacted him, and around the time of his subsequent arrest.

[5] The appellant testified at trial and denied the complainant’s allegation.

[6] The trial judge found that the complainant and the appellant both testified in a straightforward manner. Nonetheless, he concluded his reasons by saying he had conducted a W.(D.)[^1] analysis and that, based on the complainant’s evidence, which he accepted, and the totality of the evidence, he was satisfied of the appellant’s guilt beyond a reasonable doubt.

[7] The appellant appeals his conviction and seeks leave to appeal sentence. He raises three issues on his conviction appeal.

[8] First, he submits that the trial judge erred in assessing the post-offence conduct evidence by drawing an incriminating inference from comments he made to the C.A.S. worker without considering potential alternative explanations.

[9] Second, he says the trial judge’s reasons were insufficient.

[10] Third, he says the trial judge failed to consider whether the complainant’s evidence was sufficiently reliable to support a conviction.

[11] Concerning sentence, the appellant submits that the sentence imposed was excessive for this offense and this offender.

[12] For the reasons that follow, I would dismiss the conviction appeal and deny leave to appeal sentence.

B. BACKGROUND

(a) The incident

[13] The complainant testified that the appellant was living with her and her mother when the incident giving rise to the charges happened.

[14] According to the complainant, on one occasion, when she was three or four years old, the appellant came into the bathroom naked while she was seated in the bathtub, having a bath. The appellant stepped into the bathtub and got down on his knees in front of her. Both of his hands were on his penis. He said, "[o]pen your mouth." When she declined, he pushed her backwards on her shoulders and she went under the water. When she came up, he told her again to open her mouth, and she complied.

[15] The complainant said that the appellant then put his penis in her mouth and "started to pee". He continued for about ten seconds and then left the bathroom.

[16] The complainant described the pee as being "a little more stiff" than water and as being yellowish in colour. When asked to describe how the appellant’s penis felt when it was in her mouth, the complainant said, “[i]t wasn’t hard, but it wasn’t soft… It was like, gooey, but it was still hard at the same time.”

[17] After the appellant left the bathroom, the complainant got out of the bathtub, put a towel around herself, and went downstairs to get a drink and rinse out her mouth. When she got back upstairs, the appellant was still naked and was standing between the bedroom and the bathroom. He walked up to the complainant and pushed her down the stairs. The complainant landed on a landing part way down the stairs. She walked down the rest of the stairs and around a corner to the front door, where her mother had recently come into the house. She tried to get her mother’s attention, but her mother told her to “hold on” as she (the complainant’s mother) was busy speaking to someone. The complainant eventually walked away and did not disclose anything to her mother at that time.

[18] Within weeks or a few months after the incident occurred, the appellant moved out of the complainant's home, following which the complainant's mother began dating another man. The appellant had no further contact with the complainant after he moved out of her home.

(b) The disclosure

[19] As mentioned, the complainant was 12 years old when she gave evidence at trial. Her evidence, and that of her mother, indicated that the complainant first disclosed these events when she was nine years old. She and her mother had been talking about the complainant’s natural father. The subject of the appellant came up and the complainant indicated he had been mean to her.

[20] Over time the complainant referred to various occasions on which the appellant had been mean, including, taking popcorn her mother bought for her and eating it, scaring her during a scary movie, duct taping her hands and mouth to see if she could escape, and pushing her down the stairs. The complainant also referred to “the gross thing”, but did not disclose what it was. Ultimately, she did so in a handwritten note to her mother, in which she substituted an underscored blank for the word “penis”.

(c) Post-offence conduct

[21] A C.A.S. worker testified that, following the complainant's disclosure, but before the appellant was arrested, she went to the appellant’s home, where he was living with a girlfriend, and advised him he would have to leave the home because there were children present. The appellant became angry. Eventually he said to the C.A.S. worker, who had not disclosed the nature of the allegations against him, words along the lines of: "[s]o anybody could say anything about anybody sexually abusing them, and ruin their lives or whatever."

[22] About two weeks later, the appellant encountered the C.A.S. worker at the police station, just after he was interviewed by the police, following his arrest. He told the C.A.S. worker he did not make the comment about sexual abuse, which a police officer had apparently told him about.[^2]

(d) The appellant’s evidence at trial

[23] The appellant testified at trial and denied the complainant's allegations of fellatio and pushing her down the stairs. He did not recall eating the complainant’s popcorn or scaring her during a scary movie. While he denied duct taping the complainant, he acknowledged telling her, as a joke, that she better start listening or he would duct tape her to the wall.

[24] The appellant also acknowledged making the comment to the C.A.S. worker that assumed that the complaint against him involved a sexual abuse allegation. He explained that it was an intense situation and that he could think of only two reasons why he would be removed from the home: sexual assault on a child; or physical assault on a child. He said he picked the worst.

[25] In addition, he acknowledged denying that he had made that statement when he encountered the C.A.S. worker at the police station. When asked in-chief why he had done that, he responded, “I was mistaken.” In cross-examination, he again confirmed that he made the earlier statement. In response to the question, “but you were mistaken about it?”, he answered, “correct”.

C. THE TRIAL JUDGE'S REASONS FOR CONVICTION

[26] After reviewing the evidence, the trial judge noted that he was faced with “deciding this case based upon diametrically opposed testimony and no forensic or directly corroborative evidence whatsoever.” He made the initial observation that both the complainant and the appellant had testified in a straightforward manner with no significant inconsistencies.

[27] The trial judge then reviewed various principles relating to deciding a criminal case, including situations in which a child witness is involved and a charge involving a delayed complaint.

[28] The trial judge began the next segment of his reasons by saying he was impressed with the complainant's evidence. She had been consistent since the inception of the charges on material matters and, in his view, the inconsistencies between her evidence at the preliminary inquiry and trial related only to minor issues.

[29] The trial judge rejected the Crown’s submission that he should “make much of” the appellant’s comment to the C.A.S. worker about sexual abuse allegations when that subject had not been raised, holding that the appellant's explanation for making the unprompted comment was not implausible.

[30] However, the trial judge went on to state, “[w]hat is unexplained … however, is [the appellant’s] having denied making the statement, only to change his story at trial.”

[31] The Crown also asks me to consider the likelihood of a child as young as [the complainant] was at the time of the incident knowing about the sexual things involved if they had not, indeed, occurred. There is some merit in the defence argument that the actual complaint was made and its details provided by [the complainant] in 2011, i.e. not when she was a four-year old victim but, rather, when she was a nine-year old. While I accept that a nine-year-old today may well be better sexually informed than a four-year-old, what militates against that argument is the child-like wish to not even use the word penis in the note to her mother and the description, perhaps correct, of what happened as “peeing” into her mouth, when the evidence shows that it may well have been an ejaculation as opposed to urination. A sexually informed nine-year-old describing the incident or twelve-year-old giving evidence is likely to know the difference. No such knowledge was made manifest in the evidence before me.

[32] The trial judge rejected defence suggestions that the complainant’s evidence that the appellant had been mean to her demonstrated animus against the appellant and a motive to lie. He viewed the complainant’s descriptions of meanness as being in a different category than the allegations before him and did not accept “that one reasonably leads to the other.” He also found that the delay in disclosure in this case was not “particularly meaningful.”

[33] The trial judge then concluded his analysis with the following statement:

As [the appellant] has given evidence, I must engage in the analysis prescribed by the R. v. W.(D.) decision. I have done so, and my final conclusion is that the evidence of [the complainant], which I do accept, and the totality of the rest of the evidence before me, proves [the appellant’s] guilt beyond a reasonable doubt.

D. ANALYSIS

(1) Assessment of the post-offence conduct at trial

[34] The appellant argues that the trial judge erred in assessing the post-offence conduct, namely, the appellant's statement to the C.A.S. worker at the police station that he had not made the unprompted comment about sexual abuse allegations, which he understood the worker had reported to the police.

[35] The appellant submits that, while the trial judge properly accepted the appellant's explanation for his initial statement to the C.A.S. worker, the trial judge erred in describing his subsequent denial in the following fashion:

What is unexplained, in my view, however, is [the appellant’s] having denied making the statement, only to change his story at trial.

[36] The appellant maintains that he did explain this denial. He testified at trial that he was mistaken. On appeal he asserts this meant he was mistaken in the sense that he realized he had done something for which he was sorry. The appellant submits that the trial judge erred in failing to take account of his reasonable explanation. Moreover, he asserts that the trial judge wrongly drew an incriminating inference from what he says was his candid acknowledgement that his denial was mistaken.

[37] I would not accept these submissions. Read fairly, and in the context of the evidence, the trial judge's comment was no more than an observation concerning the appellant's credibility. I see no indication that the trial judge used the appellant’s explanation of his denial to draw an inference that the appellant was conscious of having committed an offence. Nor do I accept that the trial judge failed to take proper account of the appellant’s explanation for the denial.

[38] In his evidence at trial, the appellant did not elaborate on what he meant in saying that he was mistaken in telling the C.A.S. worker that he had not made the earlier statement. He said only, “I was mistaken.” The appellant had the opportunity to explain what he meant, but he did not do so.

[39] Left unexplained, the appellant’s statement that he was mistaken gave rise to obvious questions. Had the appellant somehow temporarily forgotten making the initial statement when he spoke to the C.A.S. worker the second time? If so, how was it that he now remembered making the statement? If the appellant remembered making the statement when he spoke to the C.A.S. worker the second time, what did he mean by saying, “I was mistaken”? In particular, what mistake did he make?

[40] As I read his reasons, the trial judge’s observation was no more than a finding that the appellant’s evidence on this point reflected a lack of candour – a finding that was available to the trial judge on the record and one that was uniquely for him to make.

(2) Sufficiency of reasons

[41] Second, the appellant argues that the trial judge's reasons were insufficient as they provided no real explanation of why the appellant's evidence did not raise a reasonable doubt, and therefore provided no meaningful opportunity for appellate review.

[42] The appellant asserts that the trial judge's analysis of his (the appellant's) evidence can be distilled into two basic comments. First, the appellant gave his evidence in a straightforward manner with no significant inconsistencies. Second, the appellant's erroneous denial of his statement to the C.A.S. worker was left unexplained.

[43] The appellant contends that the trial judge never rejected his evidence much less explained why he rejected his evidence. In the result, the trial judge failed to conduct a proper W.(D.) analysis and also erred by failing to provide any meaningful reasons concerning why the appellant's evidence did not raise a reasonable doubt.

[44] I would not accept these submissions.

[45] In assessing the sufficiency of a trial judge’s reasons, an appellate court should adopt a functional approach. An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons “are so deficient that they foreclose meaningful appellate review”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. As expressed by the Supreme Court of Canada, “the core question is … do the reasons, read in context, show why the judge decided as he did”: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10 and 15. See also: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.

[46] Here I am satisfied, for several reasons, that the trial judge’s reasons meet this test.

[47] As a starting point, the trial judge’s initial assessment that the appellant testified in a straightforward way was simply that – an initial assessment. After making that comment, the trial judge reviewed the relevant legal principles and carried out a more detailed analysis of counsel’s submissions and the evidence. It was only after that further analysis that the trial judge expressed his conclusion.

[48] Further, although the trial judge may not have used the words, "I reject the appellant's evidence", read fairly, his reasons leave no doubt that he did.

[49] The trial judge said he conducted a W.(D.) analysis and that, having done so, he was satisfied beyond a reasonable doubt of the appellant's guilt. In an earlier section of his reasons, he had cautioned himself that “the determination of guilt or innocence must not devolve into a mere credibility contest”, and that “mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown.” Rather, he noted that “[t]he court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.”

[50] Read in context, the trial judge’s statement that he was satisfied of the appellant’s guilt beyond a reasonable can leave no doubt that he rejected the appellant’s evidence.

[51] In addition, the trial judge's reasons reveal that he rejected the appellant's evidence in large measure because, following an analysis of the complainant's evidence in the context of the whole of the evidence, he accepted her evidence and, for several reasons, found it compelling. After saying that he had engaged in a W.(D.) analysis, the trial judge said that the complainant’s evidence, which he accepted, and the totality of the rest of the evidence before him, proved the appellant’s guilt beyond a reasonable doubt.

[52] The trial judge’s reasons for accepting the complainant’s evidence and concluding that the Crown had met the standard of proof beyond a reasonable doubt included:

• the fact that, in his view, there were no material inconsistencies in her evidence, rather it had been “consistent since the inception of these charges on truly material points”;

• he did not find the complainant to be well-informed about sexual matters;

• he did not consider that the complainant’s testimony about the appellant’s meanness demonstrated a motive to lie; and

• he found the complainant’s explanation that she had “grown the courage” to speak out to be a reasonable basis for the delay in complaint.

[53] I acknowledge that the trial judge did not fully explain precisely how certain matters factored into his credibility findings – for example, the appellant’s unexplained denial that he made the initial statement to the C.A.S. worker; the complainant’s wish, at nine years old, not to use the word “penis”; and the complainant’s lack of sexual knowledge. However, particularly where findings of credibility are involved, a standard of perfection is not required. Assessing credibility is “a difficult and delicate matter that does not always lend itself to precise and complete verbalization”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 48-49.

[54] What is clear in this case is that when the trial judge’s reasons are read in context, he accepted the complainant’s evidence for several reasons and, largely because of that acceptance, rejected the appellant’s evidence.

[55] Finally, as the Supreme Court of Canada recognized in R. v. R.E.M., at para. 66, no further explanation was required for rejecting the appellant’s evidence. The convictions themselves raise a reasonable inference that the appellant’s denial of the charges failed to raise a reasonable doubt.

[56] The trial judge was entitled to conclude that the standard of proof beyond a reasonable doubt was met based on his findings: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at para. 53; R. v. Vuradin, at para. 19. The appellant has not demonstrated any palpable and overriding error in the trial judge’s findings. I see no basis on which to hold his reasons are insufficient.

(3) Reliability of the complainant's evidence

[57] The appellant's third argument is that the trial judge erred in assessing the complainant's evidence by focusing entirely on the credibility of her evidence and failing to advert at all to reliability issues. Given that the complainant was 12 years old at trial and that she was testifying about matters that occurred when she was four, the appellant submits that it was incumbent on the trial judge to address the possibility that although she was an honest witness, the complainant was mistaken.

[58] I would not accept these submissions. The issues and arguments raised at trial focused on credibility. The trial judge's reasons are, in large measure, a response to those issues and arguments. Nonetheless, the trial judge's reasons also demonstrate that he was alive to issues of reliability. For example, the trial judge referred in his reasons to the potential for reliability concerns arising from the unsworn testimony of child witnesses and to the fact that the complainant testified based on a promise to tell the truth. He was also clearly alive to the fact that the complainant was testifying about matters which, for her, were in the distant past. In this regard, he found it significant that her evidence had been consistent since the inception of the charges – a factor that goes, at least in part, to the reliability of the complainant’s evidence.

[59] Based on the foregoing reasons, I would dismiss the conviction appeal.

(4) Sentence appeal

[60] In oral submissions, counsel for the appellant candidly acknowledged that the sentence imposed is not outside of the range of sentences that may properly be imposed for the offence at issue. However, he argued that, taking account of the appellant’s circumstances, in particular, his lack of sophistication and the fact that he is a first offender, the sentence should have been somewhat less.

[61] I would not accept these submissions. In his reasons for sentence, the trial judge identified the relevant sentencing factors pertaining to both the offence and the offender. Having done so, it was for him to determine how to balance those factors in this case. He imposed a sentence that is within the range for this type of offence, which involved violating the sexual integrity of a young child and a breach of trust. The appellant has not identified any error in principle that would justify interfering with the sentence.

[62] In the circumstances, I would deny leave to appeal sentence.

E. DISPOSITION

[63] Based on the foregoing reasons, I would dismiss the conviction appeal and deny leave to appeal sentence.

Released: “DD” OCT 18 2016

“Janet Simmons J.A.”

“I agree. Doherty J.A.

“I agree. K. van Rensburg

[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[^2]: In his evidence, the appellant could not recall that the police officer told him about the comment. However, the C.A.S. worker testified that, when the appellant spoke to her at the police station, he said he did not make the sexual abuse comment the police officer told him about.