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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2018-06-20

Docket: C64116

Panel: Watt, van Rensburg and Fairburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

D.J.B. Appellant

Counsel:

• Delmar Doucette, for the appellant
• Andrew Hotke, for the respondent

Heard: June 14, 2018

On appeal from: The conviction entered on May 24, 2017, with reasons reported at 2017 ONSC 3207, and the sentence imposed on August 16, 2017 by Justice R.J. Harper of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

Overview

[1] The appellant was convicted of two counts each of sexual touching and invitation to sexual touching. The offences involve his then nine-year-old granddaughter. He was sentenced to 30 months, concurrent on each count. He appeals from his convictions and sentence. At the conclusion of the oral hearing, we dismissed both appeals with reasons to follow. These are our reasons.

[2] The complainant's parents had an acrimonious separation, after which her father had access to the children on weekends. He would stay at his parents' home when he exercised access. This is where the offences occurred.

[3] The complainant's evidence in-chief was introduced pursuant to s. 715.1 of the Criminal Code by way of video. Among other things, the complainant testified to the following incidents:

(a) She was standing between the appellant's legs while he was seated in a chair. The appellant told the complainant to give him a kiss, after which he placed both hands on her cheeks, moved her face so that her mouth went to his lips, and inserted his tongue into her mouth. The complainant testified that while her grandfather's tongue was in her mouth, her grandmother ("T.B."), returned from her volunteer work and walked into the room. T.B. yelled at the appellant and slapped him.

(b) The next day, the appellant told the complainant that he wanted to marry her and attempted to kiss her again. This time the complainant slapped him.

(c) On another occasion, the appellant and complainant were in a computer room at the grandparents' home. The appellant told the complainant to remove her clothes. She was afraid and complied. He also removed his clothes. The complainant testified that the appellant inspected her by squatting down to examine her "private" and "boobs". He said that she looked "good" and "sexy". He grabbed her vaginal area with one hand and his penis with the other. The complainant described how the appellant held his penis like a "sausage" and "wiggled it", "like a worm".

(d) The final incident occurred in the kitchen. The appellant asked the complainant to remove her pants and she complied. He also removed his pants. He squatted to examine her body and asked her if she wanted to have sex. She said no. He was touching his penis and moving closer to the complainant when T.B. entered the kitchen and yelled at him.

[4] The trial judge, who had the benefit of viewing the complainant's video statement and seeing her cross-examined, concluded that the child was credible and her evidence reliable.

[5] He also had the opportunity to observe the complainant's grandmother, T.B., testify for the defence. She was an important defence witness because, among other things, she denied ever witnessing any inappropriate contact between the appellant and complainant. If the trial judge believed T.B., or had a doubt arising from her evidence, then the child complainant's version of events would have been very badly shaken.

[6] In the end, the trial judge rejected T.B.'s credibility, concluding: "I find that [T.B.] is not a credible witness. … I do not accept [T.B.'s] denial that she never observed her husband kissing [the complainant], with his tongue, nor her denial that she observed [the complainant] and her husband naked from the waist down on another occasion." The trial judge gave several reasons for rejecting T.B.'s credibility. The first ground of appeal relates to those reasons.

First Ground of Appeal from Conviction

[7] The appellant maintains that the trial judge erred in how he approached his credibility findings relating to T.B. We disagree.

[8] We start with the observation that, absent palpable and overriding error, the trial judge's credibility findings are owed strong deference by this court: R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 18. We see no such error. We will briefly touch upon each alleged problem.

[9] First, the appellant argues that the trial judge was wrong to rely upon a discrepancy in the evidence between T.B. and another witness in making his credibility assessment. That discrepancy relates to how often the appellant would accompany T.B. on her volunteer work. Even if the trial judge were wrong to note the discrepancy in the two witnesses' evidence as reducing their credibility, we do not agree that he rested his finding about the credibility and reliability of T.B.'s evidence on that discrepancy. Rather, his focus was on the fact that T.B. admitted that the appellant did not accompany her at least 20 percent of the time. Accordingly, her testimony that she was "absolutely sure" that the appellant was never alone with the complainant was undermined because she "could not know if [the complainant] was ever alone with [the appellant] during the times when [he] was not with her." It was open to the trial judge to come to this common sense conclusion.

[10] Second, the appellant asserts that the trial judge erred by emphatically stating that her son never took naps when the children were in the house. It was open to the trial judge to find that, given T.B.'s work schedule, she "could not have known if [her son] ever slept while the children were awake". Although the appellant submits that T.B. was not as emphatic as the trial judge suggested, she testified that she would "bet [her] life on it that he did not have a nap when he was looking after his kids".

[11] Third, the appellant contends that the trial judge erred in how he dealt with a statement T.B. had given to the police, where she acknowledged that she had once seen the complainant and appellant alone in the computer room. T.B. told the police that she "just asked" the appellant what he was doing alone in the dark with the complainant. The appellant is said to have told T.B. that he was showing the complainant the lights from a radio he had in the room.

[12] The appellant maintains that the trial judge erred in characterizing T.B.'s request to know what her husband and their grandchild were doing in a dark room together as a "demand" as opposed to a request. We do not agree. Bearing in mind the context, it was entirely open for the trial judge to characterize the evidence in this way.

[13] The appellant also submits that the trial judge reversed the onus of proof when he referred to the fact that, although the appellant had told T.B. that he was showing the complainant lights from a radio, that there was actually no evidence that those radio lights were on. We disagree. There was no evidence that the lights were on. The trial judge was simply making an observation that there was no evidence of radio lights. This did not reverse the burden of proof.

[14] Fourth, the appellant claims that the trial judge erred by misapprehending evidence, when he said that T.B. testified that the appellant was "never ever" alone with the complainant. The appellant says that her evidence should have been understood as meaning never alone in a room with the complainant. We disagree. The witness testified that they had "never been alone anywhere, ever". It was open to the trial judge to come to the conclusion he did about what T.B. meant when she said the appellant was never alone with the complainant.

[15] Moreover, it does not assist the appellant to say that T.B. meant the appellant and complainant were never alone in a room together, as T.B.'s own comments to the police, about seeing the appellant and complainant alone in the computer room together, belie this suggestion.

[16] Finally, the appellant takes issue with the trial judge's treatment of T.B.'s evidence regarding a police statement where she said: "She told Detective [x] that she could never imagine [the appellant] kissing [the complainant]. However, she could imagine [the appellant] kissing his adult grandchildren who were beautiful". The trial judge found this comment "disturbing on so many levels".

[17] The appellant argues that the trial judge took T.B.'s comments out of context. He says that T.B. meant that she could not imagine the appellant passionately kissing a child as opposed to an adult. We do not agree. Given what she told the police, it was open to the trial judge to come to the interpretation he did.

[18] We see no error in his approach to T.B.'s credibility or her evidence.

Second Ground of Appeal from Conviction

[19] The appellant submits that the trial judge did not conduct a proper analysis of the inconsistencies between the complainant's and her mother's evidence regarding the circumstances surrounding the original disclosure of the offences. He maintains that these inconsistencies give rise to an inference of potential collusion between the witnesses. We do not agree.

[20] The trial judge carefully addressed the inconsistencies in the evidence, and he confronted and resolved the allegation of collusion. We see no error in his approach.

Appeal from Sentence

[21] The appellant also seeks leave to appeal his 30 month sentence. The appeal rests on a fresh evidence application. The evidence is said to have been discovered shortly after the sentence was imposed.

[22] The complainant's mother's victim impact statement, filed at the sentencing hearing, described what she perceived as the impact of the offences on her daughter. The statement was signed and dated by the mother. The complainant then placed a short handwritten note after the mother's signature. The note refers to the fact that the complainant was "having a hard time telling [her] feelings outload [sic] and on paper". It says that she had read her mother's victim impact statement "about what my life is like now" and "agreed with it". The complainant signed and dated her brief comment.

[23] The fresh evidence consists of a lawyer's affidavit explaining that, in light of information that was discovered shortly after sentence was imposed, the lawyer interviewed the complainant. The complainant told the lawyer that, although she recalled her mother reading something to her, she could not recall whether her mother read her the entire statement. The complainant said that she simply copied onto the page a comment that her mother had prepared for her. The complainant told the lawyer that she was concerned that her mother may become angry if she did not copy out what had been written. The complainant disputed a good deal of what her mother had written.

[24] We would not admit the fresh evidence for the following reasons.

[25] The burden is on the applicant to establish that the fresh evidence should be received on appeal: R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 29-30. He has failed to do so.

[26] Even if the hearsay nature of the evidence were to be ignored, the fresh evidence would be inadmissible because it cannot "reasonably be expected to have affected the result": Sipos, at para. 29. At its highest, the fresh evidence only supports a finding that the complainant does not agree with everything her mother said about the impact that the offence has had on her. Even if the complainant's comments after sentencing had been available at the time of sentencing, the mother's victim impact statement – in its entirety – would have still been before the court.

[27] Although the reasons for sentence make reference to the complainant's brief handwritten agreement with the contents of her mother's statement, the sentencing judge's reasons only make fleeting reference to that fact. The reasons he gives for arriving at the disposition appealed from focus on the inherent and indisputable seriousness of offences of this nature and the fact that this particular one involved a significant breach of trust. As noted by the trial judge, the appellant "robbed his young grandchild of her sexual innocence".

[28] Read in context, there is no indication that the victim impact statement had an effect on sentence. With or without the victim impact statement, the appellant's sentence would have been the same. The fresh evidence would not have affected the result.

[29] Moreover, the applicant has failed to show due diligence. He did not challenge the victim impact statement at trial. He did not seek leave to cross-examine either the mother or the child before sentence was imposed. Although trial counsel suggested that some of the things said in the victim impact statement were "contrary to the [complainant's] testimony … at trial", she did not wish to get into the minutiae. Trial counsel was content, properly in our view, to base her position on the known and undeniable impact of offences of this nature on children: R. v. D.D., 163 C.C.C. (3d) 471, at paras. 35-38. This was a considered and tactical decision made at the time of sentencing and should not be second-guessed after sentence has been imposed.

[30] This was a fit sentence.

[31] The conviction appeal is dismissed.

[32] The application to admit fresh evidence is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

David Watt J.A.

K. van Rensburg J.A.

Fairburn J.A.