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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-03-30

Docket: C60798

Panel: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

D.P. Appellant

Counsel:

• Mark Halfyard and Breana Vandebeek, for the appellant
• Katherine Beaudoin, for the respondent

Heard: March 22, 2017

On appeal from: The conviction entered by Justice Haines of the Superior Court of Justice, dated June 16, 2015.

By the Court:

Facts and Conviction

[1] The appellant was convicted of three counts of sexual assault and related charges involving the alleged sexual abuse of his stepson, J.E. The charges arose out of three incidents that, according to J.E., occurred when he was nine or ten years old. J.E. reported the allegations to the police about eight years later in July 2013.

[2] The appellant testified. He had a turbulent relationship with J.E.'s mother. He described J.E. as a very difficult child who had severe emotional and behavioural problems. According to the appellant, J.E. often engaged in aggressive and dangerous conduct directed at his two younger brothers. The appellant conceded that on occasion he became very angry with J.E. and hit him. The appellant admitted using his belt to discipline J.E. on two occasions when, in the appellant's opinion, J.E.'s conduct toward his younger brothers was particularly egregious.

[3] The appellant appeals his convictions only.

Were the Verdicts Unreasonable?

[4] As often occurs in cases involving allegations of this kind, the outcome turned on the trial judge's assessment of the credibility of J.E. and the appellant and his application of the reasonable doubt standard to those assessments.

[5] There were many reasons to be concerned about J.E.'s credibility, including a long criminal history, including offences involving dishonesty, drug abuse and a longstanding penchant for lying to authorities. Despite these many problems, the trial judge ultimately believed J.E.

[6] When an appellant alleges that a verdict based on a credibility assessment is unreasonable, this court must, to a limited extent, make its own assessment of the complainant's credibility. This court does so, however, bearing in mind the many advantages enjoyed by the trial judge when it comes to assessing credibility.

[7] We cannot say that the verdicts are unreasonable in that no reasonable trier of fact would have believed J.E.'s evidence. Nothing in his description of the relevant events is inherently incredible. His criminal background, drug abuse, and mendacity were obviously relevant to his credibility. In considering what to make of the negative features of J.E.'s background, however, the trial judge had to have regard to the evidence that J.E.'s anti-social behaviour was potentially explained in part by his most unfortunate childhood. On his evidence, his mistreatment at the hands of the appellant was central to that unfortunate childhood.

[8] A trier of fact, in deciding what impact J.E.'s prior conduct should have on his credibility, would have to consider the extent to which that behaviour may have been the product of mistreatment at the hands of the appellant. We cannot say that a proper appreciation of J.E.'s background would inevitably lead a reasonable trier of fact to conclude that the allegations of sexual abuse made by J.E. were not credible.

[9] In any event, J.E.'s evidence did not stand alone. Two witnesses described the relationship between the appellant and J.E. Both testified that when J.E. misbehaved, the appellant reacted very angrily, if not irrationally. He often resorted to physical violence against J.E. Both witnesses indicated that J.E. was singled out for particularly harsh treatment by the appellant. Furthermore, on the evidence of these two witnesses, the appellant not only physically abused J.E., he emotionally abused him by denigrating and humiliating him.

[10] The evidence from these two witnesses did not offer direct support for J.E.'s allegations of sexual abuse. Their evidence did, however, confirm J.E.'s evidence in the sense that it described a relationship between J.E. and the appellant and an extreme animus toward J.E. by the appellant that was entirely consistent with J.E.'s descriptions of the appellant's assaults.

[11] It cannot be said that no reasonable trier of fact, acting judicially, would have convicted the appellant on the evidence adduced at trial. The argument that the verdicts are unreasonable fails.

The Reasons for Judgment

[12] The remaining arguments target specific aspects of the trial judge's reasons that are relevant to his ultimate credibility assessments. The appellant alleges a variety of errors. In addressing these arguments, it is helpful, before turning to a close review of specific passages in the reasons said to reveal error, to step back and examine the reasons as a whole. Reasons that reveal a full appreciation of the evidentiary record, the positions of the parties, and the issues to be determined, are much more likely to survive appellate review targeting alleged inadequacies in a specific sentence or passage than are reasons that are conclusory or perfunctory.

[13] The reasons for judgment in this case offer a detailed review of the evidence, and a full examination of the arguments presented at trial. Considered in the context of a case that turned entirely on credibility, the reasons offer a clear explanation for the verdicts arrived at by the trial judge.

[14] The appellant submits the trial judge erred in failing to treat certain inconsistencies in J.E.'s evidence as material to his credibility, but instead wrongly dismissed those inconsistencies as "peripheral". The trial judge considered several inconsistencies in J.E.'s testimony. He also outlined the defence arguments based on those inconsistencies and summarized the applicable law. It was opened to the trial judge to conclude that many of the inconsistencies relied on by the defence were "peripheral" to the main allegations. For example, the trial judge did not regard inconsistencies in J.E.'s testimony concerning the presence of his mother in the home at the time of one or more of the assaults, as a significant inconsistency. It was for the trial judge to assess the significance of that inconsistency. We see nothing unreasonable in his characterization of the inconsistency as peripheral.

[15] Counsel for the appellant emphasized two inconsistencies. He argues that the trial judge did not adequately deal with J.E.'s evidence that he, not only did not complain about the appellant's conduct to his doctor or the CAS workers who questioned him about abuse, but instead reported a positive relationship with the appellant.

[16] In his evidence, J.E. explained that he lied to the doctor and the CAS workers about the appellant's abuse because he had been coached by the appellant about what he should say to the authorities and he feared retribution if he did not follow the appellant's instructions. It was open to the trial judge to accept this explanation for J.E.'s statements to the doctor and the CAS workers. The explanation rings true in the face of the appellant's admitted physical abuse of J.E., and the evidence of the independent witnesses describing the appellant's violent temper and mistreatment of J.E.

[17] Counsel attempted to persuade the court that the trial judge erred in accepting J.E.'s explanation for lying to the CAS and the doctor about the abuse by referring the court to a passage from J.E.'s cross-examination in which he stated that he was not as afraid of the appellant after the appellant and J.E.'s mother were separated and J.E. was not living in the house. Reference to this single passage does not support a claim that the trial judge failed to consider the evidence of J.E.'s lies to the CAS and his doctor when assessing J.E.'s credibility. This passage, even if generously read, cannot negate J.E.'s unequivocal assertion that he was afraid of the appellant and lied to the authorities to avoid the wrath of the appellant.

[18] Counsel also argued that the trial judge failed to consider a significant inconsistency in J.E.'s description of the assault involving the forced fellatio in his bedroom. At the preliminary inquiry, J.E. had indicated that the appellant kicked and hit him before forcing him to engage in fellatio. In his examination-in-chief at trial, J.E. made no mention of the kicking and hitting. When confronted with the inconsistency in his cross-examination, J.E. adopted his preliminary inquiry statement, indicating that he had forgot to mention the physical violence in his evidence in-chief.

[19] The trial judge accurately reviewed this part of the evidence. He referred to J.E.'s explanation and to the defence position. He did not specifically indicate that he accepted J.E.'s explanation for the inconsistency. However, a fair reading of the reasons leaves no doubt that he accepted the explanation.

[20] In considering the potential negative impact of this inconsistency on J.E.'s credibility, one must bear in mind that J.E.'s initial trial evidence was less damaging to the appellant than his statement under oath at the preliminary inquiry. This was not a case of a complainant adding damaging evidence each time he repeated the allegation.

[21] The inconsistency between J.E.'s evidence in-chief and his preliminary inquiry evidence was brought out during cross-examination. J.E. adopted the more damaging evidence he had given at the preliminary inquiry. The act of fellatio was obviously the focus of this particular allegation. The trial judge's finding that J.E. inadvertently left certain details out of his initial account at trial, although those details were included in a prior account given under oath, was not an unreasonable assessment.

[22] The trial judge did not err in his treatment of the inconsistencies in J.E.'s testimony.

Did the Trial Judge Place "Undue Reliance" on R. v. J.J.R.D.?

[23] The trial judge was alive to the Crown's burden of proof and the application of that burden in cases in which a complainant and an accused give diametrically opposed evidence of the relevant events. The trial judge specifically referred to R. v. W.(D.), [1991] 1 S.C.R. 742. He appreciated that mere belief of J.E.'s evidence, combined with a rejection of the appellant's evidence, could not constitute proof beyond a reasonable doubt.

[24] The trial judge ultimately concluded that the appellant's evidence did not leave him with a reasonable doubt on the charges. In coming to that conclusion, the trial judge acknowledged that there was no specific feature of the appellant's evidence that caused him to reject his evidence. Rather, his rejection was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence given by J.E. as supported by the evidence of the other two Crown witnesses. The trial judge referred to R. v. J.J.R.D., [2006] O.J. No. 4749.

[25] Given the trial judge's assessment of the evidence, the passage he quoted from R. v. J.J.R.D. had application to this case. The trial judge made no error in convicting based on his considered and reasoned acceptance beyond a reasonable doubt of the evidence of J.E., despite his inability to point to any specific part of the appellant's evidence that caused him to disbelieve the appellant.

Did the Trial Judge Place "Undue Reliance" on Demeanour Evidence in Accepting J.E.'s Testimony?

[26] A witness's demeanour is an appropriate consideration when assessing credibility. Demeanour can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanour can be overemphasized by a trial judge or a jury.

[27] This trial judge made a single reference to J.E.'s demeanour, indicating that he did not detect any deceit or dishonesty in J.E.'s demeanour during his testimony. There is no suggestion in the reasons that the trial judge used J.E.'s demeanour as a positive factor in assessing J.E.'s credibility. He merely referred to the absence of any appearance of deceit or dishonesty. Even if the trial judge did use J.E.'s demeanour to some extent in assessing credibility, there is no basis upon which to find that he put undue emphasis on J.E.'s demeanour when assessing his credibility.

Did the Trial Judge Err in Equating J.E.'s "Selective" Disclosure with "Delayed" Disclosure of the Abuse?

[28] J.E. did not complain to the police for many years about the appellant's assaults. When he went to the police, he first revealed two of the assaults and a few months later revealed the third.

[29] The defence argued J.E.'s "selective" disclosure provided yet another basis upon which to reject his evidence as incredible. The trial judge referred to that argument and to R. v. D.D., 2000 SCC 43, a case dealing with the significance of delayed disclosure in assessing credibility in sexual assault cases.

[30] The trial judge concluded that J.E.'s explanation for his delayed disclosure and for his failure to disclose all of the assaults in his first interview with the police was "perfectly plausible". The trial judge observed:

The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [J.E.] more than one occasion to shed a burden that had been weighing on him for years.

[31] We see no error in the trial judge's assessment of the impact of J.E.'s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.

Conclusion

[32] The appeal is dismissed.

Released: March 30, 2017

Doherty J.A.

Grant Huscroft J.A.

Bradley W. Miller J.A.