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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.J.K., 2016 ONCA 926
DATE: 20161208
DOCKET: C60147
Sharpe, van Rensburg and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.J.K.
Appellant
John M. Rosen and Shannon McDunnough, for the appellant
Moiz Rahman, for the respondent
Heard: November 21, 2016
On appeal from the conviction entered on December 03, 2014 by Justice G.W. Tranmer of the Superior Court of Justice, sitting without a jury.
By the Court:
[1] After a five-day judge alone trial, the appellant was convicted of sexual assault, sexual interference and invitation to sexual touching involving A.B., his former common-law stepson, over a seven year period. He was also convicted of one count of assault involving his former common law spouse, S.B., and one count of breach of recognizance. He appeals his convictions, with particular focus on the offences involving his former stepson, arguing that the trial judge’s analysis of the credibility and reliability of A.B.’s evidence was flawed.
Facts
[2] In June 2003 the appellant moved into a home with S.B. and her son A.B., born in 2000, and S.B.’s daughter. He formed a strong relationship with A.B., who eventually grew to consider the appellant his father. The family resided at several residences over the next several years. The appellant’s son from a previous relationship moved into the household in 2007, and the appellant and S.B. had a child together, born in 2004.
[3] In October 2012 the appellant moved out of the home he had shared with S.B., A.B. and the other children, having started a relationship with another woman, the mother of a friend of A.B. A.B. was very upset over the appellant’s departure, as was S.B. Over the next several months A.B. sent the appellant several angry text messages, expressing his anger at the appellant for having abandoned the family. S.B. posted Facebook messages expressing her anger at the appellant.
[4] On June 3, 2013 S.B. reported to the police that the appellant had spat on her and punched her repeatedly in the head when he had come to her house earlier that day to pick up the children. The appellant was arrested and charged with assault. On June 12, 2013 S.B. reported to a Children’s Aid Society worker that A.B. had alleged earlier that day that the appellant had sexually abused him. This was the first time A.B. had made such allegations.
[5] On June 26, 2013 A.B. gave a video-taped statement to the police alleging acts of sexual touching, as well as oral and anal sex. The appellant was charged with the offences involving the alleged sexual abuse of A.B. on July 2, 2013.
Trial
[6] A.B.’s police statement was admitted into evidence pursuant to s.715.1 of the Criminal Code. A.B. testified and adopted his statement. However, in A.B.’s trial evidence, the allegations of sexual abuse were more detailed and more extensive than the allegations he had made in his police statement or at the preliminary inquiry. At trial, A.B. testified that from the age of six, he was sexually abused by the appellant hundreds of times at multiple residences over a span of seven years. The acts of alleged abuse included sexual touching, oral and anal sex performed on A.B. and, at the appellant’s direction, performed by A.B. on the appellant.
[7] The appellant did not testify at trial, nor did he call any witnesses. Defence counsel submitted that reasonable doubt was apparent in the inconsistencies in A.B.’s testimony, the implausibility of the story told by A.B., the clear and demonstrated animus of the complainants towards the appellant, and their motive to fabricate.
[8] The trial judge gave relatively lengthy oral reasons for convicting the appellant. No issue is taken with the trial judge’s statement of the applicable legal principles, including the presumption of innocence, reasonable doubt and the analysis from R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R 742. The trial judge also considered R. v. MG (1994), 1994 8733 (ON CA), 93 C.C.C (3d) 347 (Ont. CA), the case principally relied upon by the appellant, and provided an error-free analysis of how to assess and weigh inconsistencies in the evidence of a witness.
[9] In his reasons, the trial judge addressed several inconsistencies apparent in A.B.’s testimony. He also recognized that the factor of a motivation to fabricate was present, and noted that the defence was arguing both collusion and that the allegations made by A.B. were not plausible. However, the trial judge concluded that the defence submissions on these points were not sufficient to raise a reasonable doubt about whether the alleged sexual abuse had taken place. He found that A.B. was a credible and reliable witness in regard to the core of the allegations he had made, and accepted that the Crown had proven beyond a reasonable doubt the truth of the allegations.
Issues
[10] The appellant raises the following issues on appeal:
Did the trial judge fail to consider material inconsistencies in A.B.’s evidence?
Did the trial judge fail to properly analyze the motive of A.B. and S.B. to fabricate the allegations?
Did the trial judge fail to properly analyze the possibility of collusion between the complainants?
Did the trial judge fail to address the issue of the implausibility of A.B.’s allegations?
Did the trial judge over-emphasize A.B.’s ability to recall extraneous details?
Did the trial judge shift the burden of proof to the defence to prove the allegations did not occur?
Analysis
1. Did the trial judge fail to consider material inconsistencies in A.B.’s evidence?
[11] This case plainly turned upon the credibility and reliability of A.B.’s evidence. We need not belabour the obvious: credibility is a matter for the trial judge whose findings attract deference in this court absent an error in principle or a material misapprehension of evidence: R v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at para. 21.
[12] There is no doubt that by the time of trial, A.B.’s allegations were more detailed, elaborate, and extensive than those he gave in his initial police statement and at the preliminary inquiry. On appeal, counsel points to a number of inconsistencies and argues that the trial judge’s failure to specifically address all of them taints his finding that A.B. was a reliable and credible witness.
[13] We do not accept that submission for the following reasons.
[14] First, the trial judge’s reasons demonstrate that he did consider the inconsistencies between A.B.’s police statement and his in-court testimony, and he explained why he did not consider those inconsistencies to be fatal to A.B.’s credibility and reliability. When asked in cross-examination why he had not given the police all the details in his video statement, A.B. replied: “I was embarrassed and…It was gross. I didn’t want to tell somebody I didn’t know stuff that happened to me. I barely even wanted to tell my mother”. The trial judge viewed the video recording of A.B.’s police statement, and observed that when giving his statement to the police, A.B. “was shy, and afraid” and demonstrated a “lack of understanding and sophistication”. By the time of trial, the complainant was a teenager and more at ease in explaining what had happened.
[15] Second, we agree with the respondent that the trial judge’s reasons were essentially responsive to the submissions made by the appellant’s trial counsel. Trial counsel placed particular emphasis on the fact that A.B. could not recall the details of the first incident of abuse when he gave his police statement. The trial judge dealt with that argument, and with the others made by trial counsel. Many, if not most, of the inconsistencies now raised on appeal were not mentioned by trial counsel. In our view, it is entirely understandable why the trial judge focused on the inconsistencies alleged by trial counsel and did not find it necessary to address in his reasons other apparent inconsistencies.
[16] We are satisfied that when the trial judge’s reasons are read in the context of the submissions he heard, they reveal that the trial judge gave adequate consideration to the essential point, namely, whether there was an explanation for the manner in which A.B.’s allegations changed from the time he gave his police statement until he testified at trial. The trial judge concluded there was such an explanation, namely, A.B.’s age, shyness and immaturity at the time he gave his police statement.
2. Did the trial judge fail to properly analyze the motive of A.B. and S.B. to fabricate the allegations?
[17] The appellant submits that the trial judge failed to pay adequate attention to the evidence of A.B. being upset and disappointed when the appellant moved out of the family residence, evidence the appellant contends revealed A.B. had a motive to fabricate.
[18] We do not agree with that submission. The trial judge specifically referred to the evidence “which clearly demonstrate [A.B.’s] anger and upset at what he perceived to be the accused abandoning him and his family in favour” of his friend and his friend’s mother. The trial judge also specifically noted that the complainant’s mother had demonstrated considerable anger and upset and had expressed a desire for revenge against the appellant. The trial judge stated “I take this into consideration in my overall assessment of the credibility and reliability of their evidence”. However, having taken the evidence of motive to fabricate into account, the trial judge concluded that he found A.B.’s evidence to be nonetheless credible and reliable.
[19] In our view, the trial judge was entitled to make his own assessment of the significance to be attached to the motive to fabricate which he fully recognized and, in the absence of any material misapprehension of the evidence on the point, we fail to see how this Court could interfere with his findings.
3. Did the trial judge fail to properly analyze the possibility of collusion between the complainants?
[20] The trial judge specifically addressed the possibility of collusion between A.B. and S.B., and provided adequate reason for concluding that there had been no collusion. In particular, the trial judge observed that while the complainant and his mother had the opportunity to collude, S.B. gave no evidence to corroborate A.B.’s allegations of abuse. To the contrary, she testified that the accused had been a good father to the children, and that she had no reason to suspect any misconduct.
[21] We see no merit in this ground of appeal.
4. Did the trial judge fail to address the issue of the implausibility of A.B.’s allegations?
[22] On appeal the appellant places considerable emphasis on what he alleges to be the implausibility of A.B.’s allegations. He submits that it is improbable that the appellant could have committed these offences without anyone in the household noticing; that it is improbable that a child between six and 12 years old would not have suffered physical injury from having been repeatedly penetrated anally; and that despite his allegations of anal sex, A.B. never mentioned the presence of feces.
[23] The appellant contends that the following passage from the reasons reveals that the trial judge erred by improperly putting the claim of implausibility to one side. The trial judge listed several points which the defence said pointed to implausibility, namely, that: lubricant was not used; there was no evidence of grooming; there was no evidence of physical injury; a six-year-old would be unable to have anal sex on the appellant, and; the lack of mention of feces. The trial judge then stated:
The accused is required to prove nothing whatsoever in this case, but neither are any of these four points essential elements of the offences charged upon which the Crown has the onus of proving beyond a reasonable doubt. I do not consider that these four points bear on my assessment of the credibility and reliability of the complainant’s evidence.
[24] The appellant submits that this passage reveals that the trial judge failed to consider the defence implausibility argument simply because it rested on points that were not essential elements of the offence the Crown was required to prove.
[25] We disagree. We are satisfied that when read in the light of the entire record and submissions that were made to the trial judge, the passage reveals no such error. The trial judge recognized that when assessing the plausibility of A.B.’s allegations, he had to take into account the fact that he was faced with the difficult task of assessing the evidence of a child regarding acts with which no child would be familiar. While A.B. testified that the appellant performed anal sex on him and that he had performed anal sex on the appellant, neither the Crown nor defence questioned A.B. as to the degree of penetration that either he or the appellant were able to achieve. As Crown counsel pointed out in his submissions, what a young child perceived to be penetration could well be something well short of full penetration. Crown counsel also pointed out that neither party called evidence on the likelihood of physical injury or of the presence of feces. The trial judge made it clear during argument that the defence had no burden. However, in the absence of some evidence on the point, he was not prepared to draw any conclusions from A.B.’s failure to mention anything about feces or injuries.
[26] In our view, the trial judge was entitled to refuse to draw the negative inferences advanced by the defence that were reasonably based on the evidence that had been led.
[27] When fairly read in the overall context of this case, the passage indicates nothing more than that the trial judge regarded aspects of the appellant’s implausibility argument as speculative and unsupported by the record. We are not persuaded that this isolated passage in the trial judge’s lengthy oral reasons for judgment that fully canvassed the evidence demonstrates that the trial judge failed to give adequate consideration to the defence argument of implausibility.
5. Did the trial judge over emphasize A.B.’s ability to recall extraneous details?
[28] The trial judge did refer to A.B.’s ability to recall certain details as to time, place and circumstances, but we do not agree that he erred in this regard. This was only one factor in his credibility assessment, and at trial defence counsel attacked alleged inconsistencies in A.B.’s evidence regarding surrounding details. The trial judge did not err in responding to those submissions.
6. Did the trial judge shift the burden of proof to the defence to prove the allegations did not occur?
[29] We do not agree that the trial judge shifted the burden of proof to the defence. The passage relied upon by the appellant to support this contention corresponds with the second step of the W.(D.) analysis. It was preceded by a proper explanation of W.(D.), and immediately followed by a clear statement that the trial judge found that the Crown had proved beyond a reasonable doubt that the alleged incidents of repeated sexual abuse described by the complainant did occur.
Disposition
[30] For these reasons, the appeal is dismissed.
Released: December 8, 2016
“Robert J. Sharpe J.A.”
“K. van Rensburg J.A.”
“G. Pardu J.A.”