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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

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 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.

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).

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: 2017-05-16

Docket: C60442

Panel: Strathy C.J.O., Cronk and Pepall JJ.A.

Between

Her Majesty the Queen Respondent

and

J.C. Appellant

Counsel: Gordon Cudmore, for the appellant Jill Witkin, for the respondent

Heard: May 12, 2017

On appeal from: The conviction entered by Justice K. Gorman of the Superior Court of Justice, dated June 6, 2014.

Reasons for Decision

[1] The appellant appeals from his conviction for sexual interference arising from sexual acts relating to his daughter when she was between the ages of 3 and 9.

[2] The appellant submits that the trial judge erred in her application of R. v. W.(D.), (1991), 63 C.C.C. (2d) 399 and provided insufficient reasons.

[3] We disagree. This was a two-day trial that turned on credibility. The appellant was the primary caregiver of his two young daughters while his wife worked full-time. The sexual acts usually occurred in the afternoon after bath time and involved inappropriate touching of the complainant by the appellant while he masturbated and then ejaculated on the complainant's lower back or bum. The evidence of the appellant and the complainant conflicted. Opportunity to commit the offences was conceded.

[4] The trial judge gave a 12-page oral judgment. She considered and applied R. v. W.(D.). She did not believe the appellant's evidence nor did it leave her with a reasonable doubt. The appellant testified in a rambling or abrupt manner, depending on the subject, and the trial judge found his denial of never having bathed or towelled the complainant to defy common, human logic and sense. She found the complainant to be credible and her recollection to be consistent and clear. In particular, she noted the detail employed by the complainant, the unusual nature of the acts she described, and her failure to embellish her evidence. The trial judge placed little weight on the mother's evidence given her numerous meetings with the appellant's counsel and her familiarity with the Crown's case. The trial judge considered all the evidence and was satisfied beyond a reasonable doubt that the appellant was guilty.

[5] We see no reversible error in the trial judge's assessment of the witness' credibility and her findings are entitled to deference.

[6] The trial judge was entitled to accept the complainant's account of the bathing ritual and to reject the appellant's conflicting account for the reasons she gave.

[7] Nor can we fault the trial judge for her treatment of Mrs. [C.]'s evidence. Specifically, she was entitled to assess Mrs. [C.]'s impartiality, and to consider whether she had an interest in the outcome of the trial or a motive to tailor her evidence. Her reasons for discounting Mrs. [C.]'s testimony reveal that she was alert to these factors.

[8] We also reject the appellant's claim that the trial judge erred in her assessment of the complainant's testimony because she failed to consider inconsistencies in her testimony. First, neither at trial nor before this court have any material inconsistencies been identified or asserted by the appellant. Second, on our review of her testimony, any inconsistencies in the complainant's evidence were minor or peripheral in nature.

[9] We also see no error in the trial judge's treatment of the Crown's evidence regarding the materials found by the police on searching the appellant's computer. The trial judge noted this evidence and made no more of it.

[10] Lastly, read in the context of the evidence as a whole and the submissions of counsel, the trial judge's reasons for decision were adequate. The pathway and rationale for the appellant's conviction are fully explained by the reasons and permit effective appellate review.

[11] For these reasons, the appeal is dismissed.

"G.R. Strathy J.A."

"E.A. Cronk J.A."

"S.E. Pepall J.A."