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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Becks, 2016 ONCA 91

DATE: 20160202

DOCKET: C57799

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathaniel Becks

Appellant

Mark Halfyard, for the appellant

Joanne Stuart, for the respondent

Heard: January 20, 2016

On appeal from the convictions entered on April 5, 2013 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

OVERVIEW

[1] The appellant, Nathaniel Becks, appeals his convictions for sexual assault, sexual interference, and invitation to sexual touching in respect of a seven-year-old girl. The incidents at issue were alleged to have taken place over a six-month period in 2011 after the appellant moved in with the complainant, her mother, and her 11-year-old brother. The allegations made by the complainant against the appellant involved vaginal touching, vaginal intercourse, the insertion of a blue sex toy into her vagina, oral sex, and showing her pornographic videos.

[2] At trial, the complainant testified, adopting statements that she had given to the police; she was cross-examined. The complainant’s mother testified. The appellant also testified, denying all of the complainant’s allegations.

[3] At trial, the appellant submitted that the complainant’s evidence was unreliable and as such should raise a reasonable doubt. In his reasons, the trial judge reviewed the evidence in detail and specifically addressed three episodes in the complainant’s evidence referred to by defence counsel, after which he concluded that the Crown had proven the case against the appellant beyond a reasonable doubt. He convicted the appellant on all three counts.

[4] On this appeal, the appellant argued that a key part of the defence’s case at trial was that the complainant could have accessed information about the sexual episodes she described from sources other than contact with the appellant, specifically from DVDs, videos and a book that were present in the home. While appellant’s counsel acknowledged that the “Crown had a case here,” he submitted that the case had its warts. The appellant submitted that the Crown’s case came down to an assessment of the complainant’s credibility and, in dealing with that issue, the trial judge committed three errors in his reasoning which alone, or cumulatively, amount to reversible error. According to the appellant, those errors involved the application by the trial judge of stereotypical reasoning which tainted his assessment of credibility and consequent findings, necessitating a new trial.

FIRST ERROR

[5] The first error the appellant points to concerns the trial judge’s treatment of evidence about a sex education book that the complainant’s mother had purchased. The complainant’s mother testified that she had left the sex education book in the living room for her children to read. One day, she saw the complainant and the appellant looking at the book together on the living room couch. She did not overhear their conversation, but took the book out of the living room and put it in the bedroom used by herself and the appellant.

[6] The appellant testified that on one occasion the complainant had asked him questions about the book when he was sitting on the living room couch, but he was not comfortable with the discussion and went outside. On his return, he learned that the complainant’s mother had taken the book out of the living room.

[7] In dealing with that evidence, the trial judge stated:

A description Mr. Becks gave of his relationship with [the complainant] is one that paints a picture of him tolerating her. She was there but the reason he was there is because of his relationship with [the complainant’s mother]. [The mother] just happened to have two children. There is no evidence of emotional interaction, any closeness between the two of them. I’m driven to a thought that a seven year old girl would more likely raise, generally speaking if she was curious, issues of a sexual nature about her body with her mother rather than a male not even her father, and one with whom according to Mr. Becks she was not very close.

I’m driven to the conclusion that she must have asked him those questions because of their sexual connection regarding the acts that she had described.

[8] The appellant submits that the trial judge engaged in impermissible stereotypical reasoning in reaching the conclusion that the complainant’s questions to the appellant about the book supported her allegations that he was abusing her. The appellant submits that the evidence on this issue was thin, and the trial judge placed too much value on this evidence in reaching his conclusion that the events alleged took place.

[9] Although the respondent agrees that a trier of fact is not entitled to speculate or apply stereotypes, the respondent submits that the comments of the trial judge about the sex education book incident were informed by the evidence about this specific complainant and the surrounding circumstances in this case.

[10] We agree with the respondent that the trial judge referred to the specific evidence in the case to draw conclusions about the complainant and the nature of her relationship with the appellant. It was open to the trial judge to make the inference that he did on the evidence before him.

SECOND ERROR

[11] The second error identified by the appellant concerns evidence of the complainant that the appellant showed her a video or movie depicting adults engaging in sex.

[12] The complainant’s mother owned a camera. It was not in dispute that the camera contained a video of the appellant and the complainant’s mother engaging in sexual acts.

[13] In one statement to the police, the complainant stated that the appellant had shown her, on a small television screen in his bedroom, a sex video of old people having sex. In another statement, the complainant stated that the appellant had shown her on a camera a video depicting her mother and the appellant “doing the kinda stuff that he did to me.” At trial, the complainant testified in cross-examination that the appellant had shown her a video on her mother’s camera; on re-examination, she stated that the video on the camera showed old people having sex, but she did not recognize the old people.

[14] The appellant denied showing any sex videos to the complainant. He stated that on one occasion he had showed the complainant how to use the camera. At the time, he was showing the complainant pictures of some of his children. The complainant was “breathing over my shoulder,” which he did not like, so he explained to her how to use the camera and “she flipped through the pictures.”

[15] At trial, the complainant testified that she did not know how to use the camera. In one of her statements to the police, the complainant stated that the appellant showed her five videos on the camera, “but I just skipped them and went to the pictures.”

[16] A key component of the defence at trial was that the complainant had access to sexually explicit materials in her home, including DVDs and videos, through sources other than the appellant. In dealing with the issue of the camera, the trial judge stated:

[The complainant] said that Mr. Becks showed her a video on that camera which showed Mr. Becks and her mother performing sex acts. The evidence is that the camera was kept in her Mom’s room in a drawer, that [the complainant] respected Mom’s domain. The door was kept closed and it was expected that she not enter and there is, in fact, no evidence that she entered on her own. Again I ask myself, where would a seven year old get the mechanical, if mechanical is the right word, the where with all to access a video on a camera such as that on her own?

Mr. Becks stated that, well, she was looking over my shoulder while I one day was accessing photos of my children, that’s probably where she learned of it. Those are my words but that’s the essence of his evidence with respect to that issue. I accept the evidence that she watched a video of sex acts between Mr. Becks and her mother shown to her by Mr. Becks, and I simply find it incredible that a seven year old would access such a video or would have the ability to access such a video on her own. [Emphasis added.]

[17] The appellant submits that the complainant’s evidence on her ability to use the camera was equivocal. The trial judge, drawing impermissibly on his own experience, found that the complainant was incapable of operating the camera because of her age. According to the appellant, this was a material error which prejudiced the defence’s position that the complainant could access the videos other than through the appellant.

[18] While the trial judge should have avoided speculating about the technological capabilities of seven-year-old children, we accept the respondent’s submission that the evidence, taken as a whole, supported the trial judge’s ultimate conclusion that the complainant did not access the sex videos on her own. Both in her statements to the police and in her evidence at trial, the complainant consistently stated that the appellant had shown her a video depicting adults engaged in sex acts.

THIRD ERROR

[19] Finally, the appellant submits that while it was open to the trial judge to consider the absence of evidence of motive to fabricate in conducting his credibility determination, the trial judge erred in assessing the evidence of a child complainant’s motive to fabricate in the same manner as such evidence for an adult complainant. Specifically, the appellant takes issue with the trial judge’s use of the decision in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), where this court stated, at para. 123:

It was open to the trial judge to tell the jury that it was entitled to consider what motive, if any, the complainants had to falsely accuse the appellant of sexual abuse. It was further open to him to instruct the jury that if they concluded there was no such motive, it was open to them to consider why the complainants would make the allegation and expose themselves to the rigours of cross-examination on very personal matters. In doing so, the trial judge would be doing nothing more than telling the jury to use their common sense.

[20] After referring to this passage, the trial judge stated:

The Ontario Court of Appeal has instructed me to use my common sense, and even without those instructions I will do so. Disclosure was spontaneous. Why would [the complainant] tell her mother of those incidents, not just one incident, not a fleeting one, but a repetitive series of acts over an extended period of several weeks and months if it did not occur?

There’s no evidence of any animosity in this relationship between Mr. Becks and [the complainant’s mother] except his evidence that she’s said to be a jealous person. Certainly there was no evidence that [the complainant] was an unhappy seven year old who would want Mr. Becks out of her life. It was, after all, [the complainant] who volunteered this disclosure to her mother on October the 5^th, and I find that there is no motive for [the complainant] to have fabricated a tale of sexual abuse.

[21] The appellant submits that the principles stated in Batte about the assessment of evidence of motive to fabricate allegations of sexual abuse do not apply in the same manner when the witness is a child. The respondent disagrees, arguing that the appellant’s position stands at odds with the approach to assessing the evidence of child witnesses described by the Supreme Court of Canada in R. v. W. (R.), [1992] 2 S.C.R. 122.

[22] We accept the respondent’s submission. In W. (R.), the Supreme Court of Canada stated that the evidence of children should not be approached from the perspective of rigid stereotypes, but on a common sense basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case: at p. 134. As his reasons disclose, the trial judge applied that approach, and his finding that there was no motive for the complainant to fabricate her allegations against the appellant was grounded in the evidence of the specific case before him.

DISPOSITION

[23] For the reasons given above, we see no basis to interfere with the convictions entered by the trial judge. We therefore dismiss the appeal.

“K.M. Weiler J.A.”

“M. Tulloch J.A.”

“David Brown J.A.”