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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. S.C., 2016 ONCA 83
DATE: 20160128
DOCKET: C57701
Laskin, Hourigan and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.C.
Appellant
Mark Halfyard, for the appellant
Kevin Rawluk, for the respondent
Heard: August 25, 2015
On appeal from the conviction entered on July 3, 2013 by Justice John R. McIsaac of the Superior Court of Justice, sitting without a jury.
Laskin J.A.:
A. Introduction
[1] The appellant S.C. was convicted of sexual offences against his step-daughter and sentenced to seven years in prison. He appeals only his convictions.
[2] His step-daughter, the complainant, testified that the appellant engaged in a relentless campaign of sexual abuse of her for 13 years. The abuse began when she was four and ended when she left home at age 17, four months before her high school graduation. She testified that the sexual abuse progressed from sexual touching to oral sex and eventually to attempted vaginal intercourse. She also testified that when she was a child the appellant photographed her breasts and vagina.
[3] The appellant testified and denied the abuse. His theory was that the complainant fabricated her allegations to ensure she would not be forced to return to live with him after she left home.
[4] The case was tried over nine days and turned entirely on the credibility of the complainant’s allegations and the appellant’s denial. The trial judge gave lengthy oral reasons. He accepted the complainant’s evidence, which he found “balanced and compelling”. He also found her evidence had some support from the evidence of the appellant’s former partner and their son. And the trial judge rejected the appellant’s evidence, which he found “devoid of any credibility”. He also rejected the evidence of the appellant’s wife and their two youngest children, who had testified for the defence. The trial judge convicted the appellant of sexual interference, sexual exploitation and making child pornography.
[5] The appellant appeals his convictions on two grounds, both related to aspects of the trial judge’s credibility findings. First he submits that the trial judge erred by rejecting his evidence and that of his wife based on speculation about their past involvement in a subsidized housing “scam”. Second, he submits that the trial judge erred by rejecting the evidence of his two youngest children because of their relationship to him; yet, in contrast, the trial judge described the Crown witnesses as “independent and impartial”, even though they were aligned with the complainant.
[6] The appellant acknowledges that the trial judge gave other reasons for his credibility findings, which he does not challenge. But he contends that the two errors made by the trial judge taint his overall credibility findings. He asks for a new trial.
B. Background
(1) The family relationships and living arrangements
[7] When the case was tried in 2012, the appellant was 55 years old. He had a previous relationship with B.S., which ended in 1998. However, they had one son from that relationship, I.C., born in 1991. I.C. lived mainly with his mother, but on occasion with his father. By the time of trial, he and the appellant were estranged. Both B.S. and I.C. testified for the Crown.
[8] The appellant met the complainant’s mother D.C. in 1994. They became romantically involved and eventually married. The complainant was born in 1991 from her mother’s previous relationship. She lived with her mother and eventually with the appellant as well.
[9] The appellant and D.C. had two children together, a son N.C., born in 1996, and a daughter H.C, born in 1998. D.C., and N.C. and H.C. (who were then teenagers) testified for the defence.
[10] The appellant and D.C. were not wealthy. Their main financial support came from the Ontario Disability Support Program. Even though they had two children together, from the time they met until 2001, they maintained separate residences – D.C. lived in a co-op where the appellant would occasionally sleep over, while the appellant maintained his own residence. In 2001, however, the appellant inherited enough money from his father to buy a house. From then on, the family lived together. Their maintenance of separate residences led to one of the trial judge’s findings challenged on appeal.
[11] The evidence at trial showed the appellant to be a strong-minded, obstreperous and somewhat eccentric individual, with unorthodox religious beliefs. He testified that he qualified for disability support payments based on the opinion of a psychiatrist from the Centre for Addiction and Mental Health that the appellant suffered from a disability that gave him religious delusions and made him unemployable.
[12] The appellant’s strong and unorthodox views led to conflicts with other members of the family who disagreed with his opinions. The complainant clashed with the appellant over pre-marital sex, which he and his wife were opposed to on religious grounds, over her attendance at parties, and eventually over her boyfriend.
[13] The complainant left home to live with her boyfriend’s family after the appellant and her mother tried to prevent her from seeing him for a period of time. Shortly after she left home, the complainant told the police the appellant was sexually abusing her. At trial she acknowledged that she believed, mistakenly, that the police could force her to return home at her parents’ request because she was under 18. This mistaken belief formed the basis for the defence theory that the complainant made up her allegations to ensure she would not have to return home.
(2) The complainant’s evidence of sexual abuse
[14] The complainant testified that soon after the appellant and her mother became a couple, when she was between four and six years old, he showed her pornographic magazines.
[15] When the complainant was between six and eight years old, the appellant came into her bedroom at night and warned her there were “bad men”, who might kidnap her and do sexual things with her. He said she could do other things to satisfy them and taught her how to give him a “hand job.”
[16] When the complainant was nine, the appellant began performing oral sex on her. He continued to do so until she left home. He said he needed “nectar” to stay young, and he wanted to get her “honey”. When she was 11 years old the appellant showed her a video of a young girl performing fellatio, and he asked the complainant to do the same for him. At times he would also massage her breasts with Vitamin E, claiming that he was concerned about “stretch marks”.
[17] When the complainant was in grade eight, she spent time in her room with a boy in her class. The appellant asked her what had taken place and she admitted to engaging in sexual activity with the boy. The appellant then insisted he had to physically examine her genitals. He made the complainant lie on her back. He then used bright lights to illuminate her genital area, stimulated the area with a warm, wet cloth, and took pictures with a digital camera.
[18] Though the appellant denied all of the complainant’s other allegations of sexual abuse, he did admit to this physical examination of the complainant’s genitals. He claimed he wanted to see if there was “sperm lapping about”. He also admitted that he did not tell his wife about this examination until after his arrest, years later. Although the appellant admitted to physically examining the complainant just this one time, she testified that from then on he examined her regularly, and more frequently when she was dating a boy.
[19] According to the complainant, the appellant was a “night-hawk” and he had a bedroom separate from the rest of the family. Almost every night the appellant came into the complainant’s bedroom and slept with her in her single bed. He attempted sexual acts and she frequently argued with him. The appellant sometimes pinned her to the bed or complained about her seeming lack of enthusiasm for their sexual activity. The complainant also testified that several times her mother walked in on them while they were engaged in sexual activity under the bed covers and asked suspiciously what was going on. Her siblings often walked in on them too.
[20] The complainant testified that when she was 17, the appellant first attempted intercourse with her. Throughout her life he had stressed the importance of protecting her virginity. But when she told him she might have sex with her boyfriend, the appellant insisted that if she were to lose her virginity, it should be with him. He produced a condom with the word “love” written on it. When he first tried to have intercourse, he could not penetrate her because he was not fully erect. She cried; the appellant stopped and said “thank you for trying”. From then on he tried to have intercourse with her without a condom and she would fight him off.
[21] Finally, the complainant testified that the appellant insisted on taking nude pictures of her. He began doing so when she was nine or ten years old. When she was between 14 and 16, he had a photography studio in the house, and took more nude pictures of her. She testified that she did not want to pose for these pictures, but he would insist until she gave in. Later, she asked the appellant to destroy the pictures of her, and he said that he would.
[22] Although the complainant knew that what the appellant was doing to her was wrong, he told her that if she disclosed their sexual activity, their family would be destroyed and the stress would kill her mother. He told the complainant that God had brought the two of them together, and that “these things” had been going on for “thousands of years”. He also insisted that the complainant owed him these services because he had housed her, fed her, taught her, and protected her.
C. The Issues
(1) Did the trial judge err by rejecting the evidence of the appellant and his wife based on their past involvement in a subsidized housing “scam”?
[23] The trial judge gave at least six reasons for finding the appellant’s denial of sexual abuse “devoid of credibility”, none of which is impugned on appeal.
• The appellant’s “nothing short of preposterous” explanation for his admitted secret and intimate examination of his 13-year-old step-daughter – “to assure himself she had not been injured in her dalliance with her boyfriend” – and for his failure to tell his wife until after his arrest.
• The appellant’s threats to the family of the complainant’s boyfriend after she left home to live with them, threats for which the appellant was charged and pleaded guilty. The appellant said he was trying to protect his step-daughter from sexual predators and drug dealers. The trial judge found his claim “weak and unconvincing” and instead found that the “most reasonable explanation” for the appellant’s conduct was his fear the complainant “would disclose marathon sexual abuse to which she had been exposed”.
• The appellant’s claims of Biblical knowledge supported the complainant’s assertion of his use of his knowledge of the Bible as a justification for his abuse of her.
• The appellant’s evasiveness in explaining the basis for his receipt of disability support payments.
• The appellant’s testimony was “replete with exaggeration and hyperbole”. For example, after looking at Facebook photos of the complainant and her friends, the appellant accused them of having sex “off-camera”; he insisted alcohol is an “industrial solvent” and “poison”; he referred to the father of the complainant’s boyfriend as a “dead beat dad”, a “creep”, a “drug dealer”, and a “pimp”, without any rational basis for doing so; he suggested his own step-daughter was a “tart” and his son I.C. had a mental illness when he testified.
• The appellant’s evidence about a poem I.C. had written to the complainant in which I.C. had said he would always be her brother and she could always speak to him about any problems in her life. The appellant testified that the poem contained an “eerie message” about a “weird secret”, which, to the trial judge, suggested that the appellant’s own “dirty little secret” had almost been disclosed, and thus explained his anger towards his son I.C.
[24] The trial judge also rejected the evidence of the appellant’s wife because he found her explanation justifying her marriage after the complainant’s disclosure of her husband’s abuse “borders on the incomprehensible”; and “most importantly” because she “attempted to mislead the court” by suggesting that the transcript of her police interview was “doctored”. These findings too are not challenged on appeal.
[25] Nonetheless, the appellant submits that the trial judge erred in one of the reasons he gave for rejecting his evidence and the evidence of his wife, and that this error taints the trial judge’s entire credibility analysis and warrants a new trial. The error relates to the trial judge’s observation that by maintaining separate residences, the appellant and his wife were involved in some sort of housing scam. In discussing the appellant’s evidence the trial judge said:
Both he and his wife provided no satisfactory explanation for the reason they maintained separate residences prior to moving to Peterborough despite the fact they had two children together. The only explanation I can perceive for such obfuscation is that they were involved in some subsidized housing scam.
[26] And in discussing the evidence of the appellant’s wife, the trial judge again referred to their involvement in “some sort of housing scam”:
Her limp attempt to justify the accused and herself maintaining separate residences despite having two children together suggest their involvement in some sort of housing scam.
[27] The appellant contends there was no evidence to support a finding that he and his wife were involved in a housing scam. The appellant was not cross-examined on the subject of a housing scam. His wife gave a reasonable explanation for their living arrangements: they each had pre-existing subsidized or inexpensive housing, which was too small to accommodate both them and their children; and they could not obtain a larger unit of subsidized housing or afford to buy or rent a larger place. The trial judge’s finding of a “scam” was thus pure speculation, unsupported by the evidence.
[28] Perhaps the trial judge went too far in suggesting that the appellant and his wife were involved in a “scam”. But he was concerned, legitimately so, by their inconsistent answers for why they maintained separate residences. Despite acknowledging a very limited work history, the appellant said he likes to live alone because he has to be alone to do his work. His wife, on the other hand, acknowledged in cross-examination that she wanted to maintain her entitlement to subsidized housing.
[29] However, even if the trial judge erred in finding that the appellant and his wife were involved in a housing scam, this error was insignificant. At best, it played a minor and peripheral role in the trial judge’s rejection of their evidence. He gave many more cogent reasons for rejecting their testimony. Bearing in mind the appellate deference to a trial judge’s findings of credibility, this error, even if so characterized, did not taint the trial judge’s credibility analysis. I would not give effect to this ground of appeal.
(2) Did the trial judge err by rejecting the evidence of the appellant’s two youngest children because of their relationship to him?
[30] The appellant’s two youngest children, N.C. and H.C., were teenagers by the time of trial. They both testified for the defence. They said that over the years they neither saw nor heard anything to support their stepsister’s allegations of sexual abuse by their father. The trial judge found that their evidence did not give rise to a reasonable doubt about their father’s guilt. The trial judge held, in the passage the appellant relies on:
I agree with the Crown that it is evident that these witnesses are still under the influence of both their parents, two very domineering personalities in my opinion. In addition, their denials of any opportunity their father may have had to molest the complainant is totally neutralized by the significant support of the complainant I canvassed earlier in these reasons. That evidence, to varying degrees, comes from independent and impartial witnesses who have little interest in the outcome of this prosecution. The accused’s son and daughter both have significant interest in the outcome of this case and for that reason I cannot give any weight to their testimony in favour of their father.
[31] The appellant submits that it is an error for a trial judge to reject a witness’ evidence solely because of the witness’ relationship to the accused.
[32] Also relying on the above passage from the trial judge’s reasons, the appellant makes the collateral submission that the trial judge’s treatment of the evidence of N.C. and H.C. has to be contrasted with his much different treatment of the evidence of B.S. and I.C., both of whom he found to be “independent and impartial”, even though they were aligned with the complainant. I will first deal with the appellant’s main submission on this ground of appeal, and then his collateral submission.
[33] The trial judge was certainly concerned that none of the other family members had acknowledged having seen or heard any of the sexual abuse to which the complainant testified. Part way through his reasons the trial judge observed:
I agree with Mr. Cowan’s [defence’s] submission that I should approach the complaint herein with significant scepticism given the fact it involves allegations of accelerating and unrelenting sexual abuse in a domestic context where none of the other members of the parties’ family have admitted to having seen or heard a hint of the conduct with which the accused is charged.
[34] And I agree with the appellant that the trial judge would have erred had he discounted the evidence of N.C. and H.C. solely because they were the appellant’s children. In R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397 at para. 11, Charron J. wrote:
The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.
[35] But the trial judge did not reject the evidence of the appellant’s children solely because of their relationship to their father. He mainly rejected the evidence of N.C. and H.C. because, in his view, they were still under their parents’ influence. That was a legitimate basis to reject their evidence and it was a basis well supported by the evidence. The appellant admitted that he ran the household “kind of like a lion pride”. Chris Hohner, a friend of the appellant, who testified for the Crown, said the appellant “commanded obedience from the children and from D.C.… he was in total charge of things.” He had a temper, could become angry, could issue commands that brooked no opposition, and would “tell the children where to go and what to do”. When asked whether the children would ever dispute the appellant’s commands, Mr. Hohner replied, “No, they wouldn’t dare to, nor would D.C.”. Thus the trial judge did not err in giving no weight to the exculpatory evidence of N.C. and H.C.
[36] Last, I turn to the trial judge’s treatment of the evidence of B.S. and I.C. B.S., the appellant’s former partner and I.C.’s mother, testified that in 2004 when the complainant was 14 or 15 years old, she went to the appellant’s residence to pick up some of I.C.’s belongings. She did so because I.C. had a falling out with the appellant and did not want to stay with him. B.S. said that while she was there, she saw the appellant pull the complainant across his lap and held her from behind with one hand beneath her breast. N.C. was present at the time and said “Oh, dad’s always doing that”. B.S. testified that she was upset by what she had seen, she called the complainant’s mother to tell her about the incident, and later told the appellant he should keep his hands off the complainant.
[37] I.C. testified that he occasionally saw bodily contact between the appellant and the complainant, including the appellant’s standing close behind the complainant or rubbing up against her. On one occasion, he overheard the complainant say: “Okay, that’s enough touching.” I.C. also testified that once he walked in on the appellant and the complainant when they were having a nap and saw a “blanket shuffle” while they were together in bed. Finally, I.C. testified that he helped the appellant with his “glamour photography” and in doing so saw many pictures of the complainant, including one in which she wore a toga and had one breast exposed.
[38] In the passage from the trial judge’s reasons I quoted earlier in this section, the trial judge found “significant support” for the complainant’s allegations in the evidence, “in varying degrees”, from “independent and impartial witnesses who have little interest in the outcome of this prosecution”. In this finding, the trial judge was likely referring mainly to the evidence of I.C. and to a lesser extent the evidence of B.S.[^1]
[39] The appellant submits that neither B.S. nor I.C. was independent and impartial. B.S. was a partisan witness and hostile to the appellant. They had separated after a violent fight, and she finally admitted during cross-examination at trial that she did not like the appellant “because he abused his step-daughter, and he caused a lot of damage to a lot of people.” I.C. too, the appellant argues, supported the complainant and was “outright hostile to the appellant”. I.C. admitted he resented the appellant for kicking him out of the house, he encouraged the complainant to have the appellant charged, he called the appellant a “dickwad” in an email, and he referred to the appellant as a “douchebag” in his statement to the police.
[40] The trial judge was right to say that neither B.S. nor even I.C. had a great interest in the outcome of the prosecution, certainly not in the way N.C. and H.C. did. By the time of trial B.S. had been separated from the appellant for over 20 years, and I.C. no longer lived with the appellant or had anything to do with him. I accept that both were hostile to the appellant – I.C. more so than B.S. – and so neither might be seen as entirely impartial. But their hostility or animus toward the appellant does not justify disregarding their evidence, or more importantly, taint the trial judge’s acceptance of the complainant’s compelling evidence of sexual abuse. I would not give effect to this ground of appeal.
D. Conclusion
[41] The trial judge did not make any error in his credibility findings that would justify this court’s intervention. I would dismiss the appeal.
Released: January 28, 2016 (“J.L.”)
“John Laskin J.A.”
“I agree. C.W. Hourigan J.A.”
“I agree. G. Pardu J.A.”
[^1]: Chris Hohner, the appellant’s friend also testified. He said that the appellant was pre-occupied with sex and would display “soft porn” images on his computer. His evidence does not directly bear on the charges against the appellant.