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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

539(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

539(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

539(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

Court of Appeal for Ontario

Date: 2019-04-09

Docket: C64653

Panel: Doherty, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

C.S. Appellant

Counsel:

• Ian B. Kasper, for the appellant
• Sean Horgan, for the respondent

Heard and released orally: April 3, 2019

On appeal from: The conviction entered on January 26, 2017 by Justice S. Lavine of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of various offences arising out of the alleged sexual assault of S., his nine-year-old daughter. S. testified and described various forms of sexual abuse that occurred over about a 10-month period. Her younger stepsister, A., also testified. She confirmed parts of S.'s evidence about the sexual abuse, but in some ways her evidence was quite different than S.'s evidence. The appellant testified and denied any sexual misconduct.

[2] In the course of the defence, it put forward the position that S. had a motive to fabricate the allegations against the appellant and that A. had gone along with S.'s fabrication as a way of offering some explanation for how she came to be in possession of the vibrator that was found in her computer bag. The trial judge ultimately rejected the defence position and gave reasons for doing so.

[3] The trial judge clearly appreciated the substance of the evidence and the respective positions of the parties. She articulated those positions in her reasons. The trial judge also instructed herself on key legal principles, including the burden of proof and the manner in which the evidence of children should be assessed.

[4] The trial judge considered and rejected the appellant's evidence. She gave two reasons for doing so. We need not go into any details with respect to those reasons as the appellant's arguments focus on the trial judge's acceptance of S.'s evidence and not her rejection of the appellant's evidence.

[5] The trial judge was alive to the contradictions and inconsistencies in S.'s evidence. She not only summarized those inconsistencies and contradictions, but referred to some of them in the context of her assessment of S.'s credibility. The trial judge also referred to various factors in S.'s demeanour and in the presentation of her evidence, which in the trial judge's view enhanced her credibility.

[6] Next, the trial judge contrasted S.'s evidence with A.'s testimony. She found S. credible and A. much less credible. This part of the trial judge's reasons is significant for the purposes of appeal, in that it demonstrates that the trial judge appreciated the individualized nature of the credibility assessments she was obligated to make. The trial judge clearly made no inappropriate assumptions about the evidence of children or how children should behave when testifying. Rather, the trial judge made credibility findings after a critical analysis of the evidence of each witness.

[7] In the end, the trial judge was clearly aware of the features in S.'s testimony that could undermine her credibility and reliability. The trial judge also identified factors which, in her view, supported the credibility and reliability of the evidence. These factors considered, as a whole, ultimately led her to conclude, first, that S. was a credible witness whose evidence could be believed and, second, that her evidence established guilt beyond a reasonable doubt.

[8] On a review of the reasons of the trial judge in the context of the entire record, it is clear how she arrived at her verdicts. She got there by first rejecting totally the material defence evidence as untruthful and secondly by a reasoned acceptance of the core of S.'s evidence as it related to the allegations of sexual misconduct. The trial judge then placed that acceptance of S.'s evidence in the context of the Crown's burden of proof and found that the case had been proved beyond a reasonable doubt.

[9] For the reasons set out above, we are satisfied that the trial judge's reasons did admit of appellate review and were adequate. We also find no error in the trial judge's analysis of the evidence.

[10] The appellant also submitted that the verdicts were unreasonable. We cannot agree with that submission. S.'s evidence, if believed, and it was certainly reasonably capable of belief, provided ample evidence to support the verdicts arrived at by the trial judge.

[11] The conviction appeal is dismissed.

Sentence Appeal

[12] Turning to the sentence appeal, the trial judge imposed a total sentence of three and one-half years. The appellant argues that the sentence should be reduced because the trial judge gave inadequate consideration to the appellant's Aboriginal background. We disagree.

[13] The reasons for sentence demonstrate that the trial judge gave proper consideration to this factor. The trial judge made numerous references to the Gladue Report that had been prepared for the purposes of sentencing. For example, she referenced the report at pp. 3 to 6 of her reasons for sentence. The trial judge also quoted from the relevant Supreme Court of Canada jurisprudence, e.g. see R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207.

[14] We are satisfied that the trial judge did give meaningful consideration to the appellant's Aboriginal background. When considered with all of the other relevant factors in this case, which include the age of the victim, the seriousness of the abuse, and the egregious breach of trust, the sentence imposed was fit.

[15] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"Doherty J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."