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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-11-05

Docket: C63911

Panel: MacPherson, Miller and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.E. Appellant

Counsel

Melanie Webb, for the appellant

Joseph Hanna, for the respondent

Hearing

Heard and released orally: November 1, 2018

On appeal from: the conviction entered on February 28, 2017 by Justice Myrna L. Lack of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of sexual assault and sexual exploitation by Lack J. of the Superior Court of Justice. He was sentenced to 12 months' imprisonment, concurrent on both counts, plus two years' probation, a lifetime Criminal Code s. 109 weapons prohibition, a lifetime SOIRA order, and a DNA order. He appeals from the convictions.

[2] At the time of the alleged offences, the appellant and the complainant were members of a bagpipe band. The band had about 20 to 30 members. The complainant usually played bass drums. The appellant was in charge of the band's mid-section which included the bass drums. The appellant was also the band's manager, although he had no authority over band members in the sense of disciplining or terminating them.

[3] The timeframe of the alleged offences was from 2012 to 2014. During this period the complainant was between 16 and 20 years old and the appellant was between 61 and 65.

Allegations

[4] The Crown alleged that the appellant committed the crime of sexual exploitation on several occasions: (1) at a parade when the complainant was 16 years old; (2) during the complainant's 17th birthday party at the appellant's home; and (3) in a hotel room when the complainant was 17 years old.

[5] The Crown alleged that the appellant committed the crime of sexual assault on the following occasions: (1) in the appellant's recreational vehicle ("RV") when the complainant was 18 years old; (2) in the appellant's trailer after the complainant turned 18; and (3) in the appellant's RV when the complainant was 20 years old.

Trial

[6] The trial lasted 12 days. Both the complainant and the appellant testified.

[7] The Crown brought a similar fact application in regard to the allegations of unwanted sexual touching made against the appellant by two other young members of the band. The trial judge admitted the similar fact evidence, saying:

I conclude that the allegations of [A] and [B] are suggestive of a pattern of conduct so distinctively similar to be capable of supporting the inferences sought in relation to [the complainant's] allegations.

[8] In her trial reasons, the trial judge found the complainant to be a credible witness. In contrast, she found that the appellant had an inconsistent and unbelievable memory of events and that parts of his testimony were nonsensical and fabricated. She convicted the appellant of sexual assault and sexual exploitation.

Grounds of Appeal

[9] The appellant appeals on four grounds.

First Ground: Uneven Scrutiny of Evidence

[10] First, the appellant contends that the trial judge applied an uneven standard of scrutiny to the evidence of the complainant and the appellant. Specifically, the appellant says that it was unfair for the trial judge to criticize his "amazing recall of the most ordinary and unremarkable circumstances" and draw a negative inference from this and not make a similar observation about the complainant's similar testimony. In addition, the appellant asserts that the trial judge expressed skepticism about his testimony but failed to scrutinize similar improbabilities in the complainant's testimony.

[11] We do not accept this submission. As this court has said recently, the "uneven scrutiny" argument is a very difficult one to make successfully because it essentially invites the appellate court to "re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record": see R. v. Radcliffe, 2017 ONCA 176, at para. 23.

[12] After carefully reviewing the trial judge's reasons, we do not see an unfair or uneven scrutiny of the various witnesses' testimony by the trial judge. The problem for the appellant was his own testimony, not the trial judge's scrutiny of it. To take but one example, we refer to this passage from the trial judge's reasons:

I also found that [the appellant's] description of the sexual events did not make sense. On nearly every occasion when he said that [the complainant] made an overt sexual action toward him, [the appellant] said that he asked [the complainant] if he was okay with it. As a matter of common sense, it is not logical that a person would ask a sexual aggressor – one who has made his wishes clear by his physical actions or words – for consent.

Second Ground: Application of Browne v. Dunn

[13] Second, the appellant challenges a single stand-alone paragraph in the trial judge's reasons:

I should also add that a number of matters that [the appellant] testified to were not put to [the complainant] in cross examination. Most striking was that it was never put to [the complainant] that he was the sexual aggressor after he turned 18.

[14] The appellant contends that this negative comment was unfair because defence counsel had conducted a comprehensive cross-examination of the complainant on virtually every aspect of his testimony.

[15] We are not persuaded by this submission. Even if the trial judge misapplied the rule in Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.), her "soft" criticism of the appellant on this point is of no moment in the context of the trial judge's several reasons for rejecting the appellant's testimony.

Third Ground: Failure to Call Witnesses

[16] Third, the appellant asserts that the trial judge erred by not addressing the Crown's failure to call certain witnesses, especially witnesses who were allegedly present in the RV, trailer and hotel where some of the incidents occurred.

[17] We disagree. A trial judge should draw an adverse inference from the failure of a party to call a witness only with the greatest of caution: see R. v. Ellis, 2013 ONCA 9, at para. 49. Defence counsel present at the trial did not make such a request. And the defence could have called the relevant witnesses, especially in the context of a trial where the accused testified.

Fourth Ground: Similar Fact Evidence

[18] Fourth, the appellant contends that the trial judge erred by allowing the similar fact application. With respect to one of the proposed similar fact witnesses, the Crown had chosen to drop charges against the appellant with this witness as the complainant; including him as a similar fact witness might amount to the re-litigation of the charges involving him. With respect to both of the similar fact witnesses, the evidence relating to them bore no real similarity to the evidence relating to the charges involving the complainant.

[19] We do not accept these submissions. Recently, this court upheld a trial judge's decision to permit the use of withdrawn charges as similar fact evidence: see R. v. D.S., 2017 ONCA 131, at paras. 21-22. On the similarity point, in her reasons on the similar fact application the trial judge acknowledged the differences but found that the similar fact witnesses' evidence supported the potential inference that the appellant had "a situation specific propensity to use his trusted position and status in the band to sexually groom, sexually assault and sexually exploit young men in the band he finds in vulnerable circumstances." We do not fault this analysis.

Decision

[20] The appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco J.A.