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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2017-06-08

Docket: C61741

Judges: Weiler, Feldman and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

F.L. Appellant

Counsel:

• Vincenzo Rondinelli, for the appellant
• Hannah Freeman, for the respondent

Heard: April 26, 2017 to April 28, 2017

On appeal from: The convictions entered on October 16, 2015 by Justice William M. Le May of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Introduction

The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching following a trial by judge alone. The sexual assault and invitation to sexual touching convictions were stayed pursuant to Kienapple and the appellant was sentenced to a term of 8 years' imprisonment. He appeals from conviction, submitting that the judge made palpable and overriding errors in making the credibility assessments that were central to the case.

[2] Disposition

At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

A. The Complaint

[3] Background

The complainant, the appellant's step-daughter, complained of a series of incidents that occurred when she was between 5 and 14 years of age. She first discussed the allegations with the police when she was 15 years old. She was 19 years old at the time of trial.

B. The Evidence

[4] Complainant's Testimony – Initial Incident

The complainant testified that the first incident occurred when she was five years old. She was in the bathtub with the appellant when he asked to put his penis into her mouth. The appellant testified that she was assaulted two to three times weekly until she was 14 years old. The assaults involved oral and anal sex and occurred in the family home, and later at the appellant's apartment, following his separation from the complainant's mother.

[5] Pattern of Assaults

The assaults occurred following requests from the complainant to go somewhere or to do something, and later for money or electronics. The complainant testified that the appellant would tell her that she had to do something in return. He would sometimes use a hand gesture, or stick his finger in the middle of her bum and press, especially if the complainant's half-sister R.L. was present.

[6] Complainant's Mother's Testimony

The complainant's mother, A.C., testified that the appellant was wonderful with the complainant and she was very attached to him emotionally and related to him as a father. The complainant and R.L. continued to visit the appellant after he moved out of the family home. A.C. testified, further, that the complainant had attempted suicide shortly after telling her about her allegations against the complainant.

[7] Appellant's Current Wife's Testimony

The appellant's current wife, A.D.S., testified that the complainant would visit the appellant and her twice weekly. She said that she was always home when the complainant visited and would not leave the apartment on her own. She testified that she was trying to learn English but could not speak it. She testified that the complainant's behaviour changed once she learned that A.D.S. was pregnant, and that she "kinda didn't like it".

[8] Appellant's Testimony

The appellant testified and denied all of the complainant's allegations. He acknowledged being naked in the bathtub taking a bubble bath with the complainant when she was young, but saw nothing wrong with this because it was as if he were the complainant's father.

C. The Trial Judge's Decision

[9] Application of the W.(D.) Test

The trial judge applied the R. v. W.(D.), [1991] 1 S.C.R. 742 test. He did not believe the accused's testimony; found that the appellant's testimony did not raise a reasonable doubt; and concluded that the evidence, taken as a whole, did not raise a reasonable doubt.

[10] Trial Judge's Findings

In particular, the trial judge was satisfied beyond a reasonable doubt that the appellant:

• regularly asked the complainant to perform oral sex on him and to engage in sexual touching by touching his penis and placing it in her mouth;
• forced anal sex on the complainant on at least two occasions; and
• performed oral sex on the complainant on more than one occasion.

The assaults occurred when the complainant was between 5 and 14 years of age.

D. Issues on Appeal

[11] Grounds of Appeal

The appellant argues that the trial judge's credibility findings were tainted by palpable and overriding errors concerning:

1. The complainant's "selective dishonesty";
2. The complainant's evidence after she turned 14 years of age;
3. The appellant's wife's presence in the apartment where assaults were alleged to have occurred;
4. Gifts given to the complainant by the appellant; and
5. The complainant's motivation to lie.

Each of the alleged errors is addressed in turn.

E. Analysis

(1) The Complainant's "Selective Dishonesty"

[12] Cross-Examination Evidence

In cross-examination, the complainant acknowledged a history of what she termed "selective dishonesty" in the following exchange:

Q: [D]o you agree that during the course of, of what – between your pages [sic] of 5 and 14, you were always telling lies to everyone? Would you agree with that statement?

A: Can you be more specific?

Q: Were you in the habit of telling lies during that period of time, especially when you're growing a little older, let's say between 10 and 14? Were you in the habit of telling lies to everybody?

A: I think it was selective dishonesty.

[13] Trial Judge's Analysis

The trial judge addressed the matter as follows:

[D]oes the complainant's admitted history of "selective dishonesty" when she was in her early teens affect the credibility of her testimony? In my view, it does not for two reasons:

(a) The complainant candidly acknowledged this problem when she was testifying before me.

(b) She also acknowledged a history of drug and alcohol abuse, as well as other psychological issues that she had at the time. The complainant's testimony in this regard actually enhances her credibility, rather than diminishing it, as she is able to recognize her own frailties.

[14] Appellant's Submission

The appellant submits that although it was open to the trial judge to find that the complainant's admitted drug use and history of lying did not undermine her credibility, the trial judge erred by using the complainant's admission of dishonesty to bolster her credibility: R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, at paras. 89-90.

[15-17] Court's Conclusion

We disagree.

This is not a case like D.T., in which the trial judge wrongly concluded that recantation of one allegation against the accused meant that another allegation that was not recanted was more believable. The appellant's "selective dishonesty" did not concern specific allegations that went to the core of her complaint against the accused, as in D.T. The complainant's acknowledgment of "selective dishonesty" was a general description of her behaviour between the ages of 10 and 14. She did not recant a specific statement that revealed animus against the accused, as occurred in D.T.

The trial judge's remarks were made in the context of finding that the complainant's acknowledgment of drug and alcohol abuse and psychological issues did not undermine her credibility. Read as a whole, his reasons do not reveal error and are entitled to deference.

(2) The Complainant's Evidence After Age 14

[18] Appellant's Argument

The appellant acknowledges that the trial judge was entitled to apply a less exacting standard to peripheral matters that occurred during the complainant's childhood, as this court noted in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, but submits that he erred by failing to assess the complainant's credibility on several matters she claimed not to recall, all of which would have occurred after she turned 14 years old.

[19-21] Court's Conclusion

We disagree.

As the Supreme Court pointed out in R. v. R.W., [1992] 2 SCR 122, at p. 134, there are no "hard and fast rules as to when a witness's evidence should be assessed by reference to 'adult' or 'child' standards". Read as a whole, the trial judge's reasons demonstrate that he appreciated the need to determine the reliability of the complainant's evidence having regard to her age at the relevant time.

Simply because the trial judge did not advert to all four areas concerning the complainant's alleged lack of recollection in making his credibility finding does not mean that he ignored this evidence. Indeed, much of it was set out in the trial judge's thorough summary of the evidence. The trial judge carefully considered the evidence and there is no basis for concluding that he erred in doing so. The trial judge was not required to refer to every piece of evidence in making his credibility and reliability findings. The trial judge's reasons for accepting the evidence were not inadequate.

(3) The Appellant's Wife's Presence in the Apartment

[22] Appellant's Argument

The appellant submits that the trial judge erred in finding that A.D.S.'s testimony – that she would not leave the small apartment she shared with the appellant unless the appellant was with her – was not credible. The appellant says this finding was based on speculation.

[23-24] Court's Conclusion

We disagree.

It was not contested that the apartment was small. It requires no speculative leap to be skeptical of A.D.S.'s testimony, which would have resulted in her remaining at the small apartment alone for long periods of time while the appellant was away working full-time, and remaining at the apartment during the complainant's visits even though she could not speak to the complainant without English translation. The trial judge's finding that A.D.S.'s evidence on this point was "difficult to accept" is entitled to deference. In any event, the trial judge clearly understood the import of the appellant's wife's evidence. He found that it did not raise a reasonable doubt.

(4) Gifts Given to the Complainant

[25] Appellant's Argument

The appellant submits that the trial judge's finding that the appellant would give the complainant gifts in exchange for sexual acts is undermined in the context of the complainant's evidence that there were hundreds of assaults. The appellant submits, further, that the trial judge failed to consider A.C.'s evidence that the disparity in gifts the appellant gave the complainant compared to R.L. was the result of R.L.'s passive nature in requesting gifts.

[26-27] Court's Conclusion

We disagree.

There was ample evidence, such as the evidence of the complainant's mother, to support the trial judge's finding that there was a disparity in gifts given by the appellant to the complainant and R.L., and it was open to him to accept the complainant's evidence that the disparity reflected an exchange associated with the sexual assaults. The trial judge was entitled to reject the inference that the disparity in gifts was because R.L. did not ask for gifts – an inference that ran counter to the appellant's evidence that he treated the complainant and R.L. equally. Although the trial judge did not mention A.C.'s evidence concerning R.L. not asking for gifts, he made no error in doing so. As indicated, a trial judge is not required to refer to every piece of evidence in making his decision.

(5) The Complainant's Motivation to Lie

[28] Appellant's Argument

The appellant submits that the trial judge erred in assessing whether the complainant had a motive to lie, arising out of her jealousy of the appellant's wife's pregnancy.

[29-30] Court's Conclusion

We disagree.

The trial judge dealt briefly with the jealousy issue, stating that the appellant's evidence that he did not see any problems in the relationship between A.D.S. and the complainant in the summer of 2010 contradicted the argument put forward by his counsel. He did not refer to all of the evidence in reaching this conclusion, but was under no obligation to do so. The trial judge did mention the complainant's preliminary inquiry evidence, and earlier in his decision set out A.D.S.'s evidence that her relationship with the complainant had changed once the complainant learned that she was pregnant. The trial judge's description of the evidence as "very limited" may be inapt, but in our view the trial judge's conclusion that the evidence before him did not demonstrate a motivation on the part of the complainant to lie was open to him on the record.

F. Conclusion

[31] Disposition

The appeal is dismissed.

K.M. Weiler J.A.

K. Feldman J.A.

Grant Huscroft J.A.