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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2019-05-22

Docket: C65478

Panel: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

R.M. Appellant

Counsel: Jennifer Dagsvik, for the appellant Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: May 17, 2019

On appeal from: the conviction entered on November 16, 2017 and the sentence imposed on June 15, 2018 by Justice John Fregeau of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual assault, one count of invitation to sexual touching, and one count of touching for a sexual purpose. The complainant was the niece of the appellant's then wife, who was 9-11 years old at the time of the offences.

[2] The appellant submits that the trial judge erred in three respects. He says that the trial judge erred:

1. in overemphasizing the appellant's demeanour in making an adverse credibility finding;

2. in misapprehending the evidence concerning logical reasons why the appellant would not have spent time alone with the complainant, and the evidence of the complainant's mother; and

3. in applying a harsher standard of scrutiny to the appellant's evidence than the Crown's.

[3] We disagree, and dismiss the appeal for the following reasons.

[4] First, it cannot be said that the appellant's demeanour was one of the main reasons the trial judge found him not to be credible. This is not a case in which the trial judge wrongly made assumptions or accorded undue weight to impressions based solely on the appellant's testimonial demeanour.

[5] Although the trial judge noted that the appellant repeatedly and emphatically denied that he was ever alone with the complainant, his statement that he was "left with the impression that the accused's evidence was strategic rather than balanced and forthright" was made in the context of his consideration of the evidence as a whole. The trial judge found no logical reason for the appellant never to have been alone with the complainant, and that the appellant's evidence "lacked an air of reality" and was "improbable and contrary to common sense". These findings were open to the trial judge and are entitled to deference.

[6] Second, although the trial judge overstated the effect of the testimony of the complainant's mother as to the appellant having been alone with the complainant, his rejection of the appellant's evidence was also grounded in his acceptance of the evidence of the complainant and the appellant's former wife. The trial judge did not misapprehend the evidence in finding that there was no logical reason for the appellant never to have been alone with the complainant. Read as a whole, his decision provides ample basis for his finding.

[7] Third, there is no basis to conclude that the trial judge applied a harsher standard of scrutiny to the evidence of the appellant than that of the Crown. The trial judge properly instructed himself concerning the evidence of children. He acknowledged frailties in the evidence of the complainant, and in particular the mistake she made concerning the date of the hockey camp, but considered that this was an immaterial inconsistency on a peripheral issue. That characterization was open to him. Importantly, the trial judge found that the complainant did not waiver as to the truth of her core allegation throughout cross-examination.

[8] The trial judge cannot be said to have demonstrated an undiscriminating acceptance of the complainant's evidence, or that of the appellant's former wife. The trial judge specifically treated the evidence of the appellant's former wife with care on the basis of his conclusion that she was hostile to the appellant. Nor can the trial judge be said to have drawn common sense inferences in favour of the Crown but not the defence. The appellant's argument is, in essence, an invitation for this court to reweigh the evidence.

[9] The appeal is dismissed.

[10] The sentence appeal is allowed. The sentence is varied to set aside the victim surcharge but is in other respects unchanged.

"Doherty J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."