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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-06-12

Docket: C64806

Panel: Feldman, van Rensburg and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

W.H. Appellant

Counsel

For the Appellant: Breana Vandebeek

For the Respondent: Jill Cameron

Hearing and Appeal

Heard: June 7, 2019

On appeal from: The conviction entered on September 19, 2017 by Justice Grant R. Dow of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Overview

[1] The appellant was convicted of sexual interference, invitation to sexual touching and sexual assault arising out of three incidents involving the appellant's stepdaughter, who was between 6 and 11 years of age at the time of the offences.

[2] The appellant makes two arguments on appeal. First, he argues that the trial judge erred in relying on the consistency of the complainant's allegations to undermine problems related to the manner and timing of disclosure. Second, the appellant argues that the trial judge applied an uneven standard of scrutiny to the evidence of the defence and the Crown.

(1) The Consistency of the Allegations

[3] The appellant's argument that the trial judge's reliance on the consistency of the complainant's allegations amounts to oath helping must be rejected.

[4] In the impugned passage in his reasons, the trial judge states that any concern that the complainant's mother's inquiries of her raised a reasonable doubt was eliminated by the fact that the complainant had repeated her allegations to the police, the judge at the preliminary inquiry, and the trial judge over a three-year period, and that her evidence "has not wavered" as her appreciation of the importance of telling the truth would likely have grown.

[5] We agree with the Crown that the trial judge's statement must be read in the context of the submissions from the parties and his reasons as a whole.

[6] The defence was entitled to attack the complainant's credibility, including various inconsistencies in her evidence. However, it was open to the trial judge to consider the whole of the evidence, including the complainant's evidence following her initial disclosure and to whom it was made, in determining whether the manner of the complainant's mother's questioning of her prior to the allegations being made raised a reasonable doubt.

[7] The trial judge did not use the complainant's statements to bolster her credibility or to corroborate her in-court testimony. Rather, the trial judge considered, and rejected, the appellant's contention at trial that the complainant's evidence was unreliable because it was inconsistent; because of the circumstances in which it was disclosed following the complainant's mother's inquiries of her (specifically, asking whether the appellant had put his penis into her vagina); and because the complainant should have been a better witness because she was no longer a child. This was the context in which the trial judge referred to the complainant having maintained her complaint, reporting it not only to her mother but also to authority figures, despite her love for the appellant and absence of a motive to displease her mother. The unwavering nature of her evidence also rebutted the defence's argument that she should be a better witness because she was 15 years old when she testified.

[8] In other words, the trial judge's credibility findings did not rest on the impermissible assumption that because the complainant had repeated her story, it was more likely to be true. Although the trial judge's reasons could have been clearer in this regard, it is apparent that he was ultimately using the statements to provide context with which to assess the defence's attack on the complaint's reliability based on alleged inconsistencies: R. v. O. (L.), 2015 ONCA 394, at paras. 34, 36; R. v. J. (M.A.), 2015 ONCA 725, at para. 46.

[9] We see no error in the trial judge's treatment of the evidence. The trial judge offered extensive reasons in support of his conclusion that the appellant was guilty beyond a reasonable doubt, reasons that are responsive to the record that was before him. The burden properly remained on the Crown throughout.

(2) Uneven Scrutiny of the Evidence

[10] The second ground of appeal must also be rejected. The appellant can point to nothing in the trial judge's reasons or in the record that establishes that he applied different standards of scrutiny in assessing the evidence of the complainant and the appellant, nor can the appellant identify any palpable and overriding errors.

[11] The appellant's argument is, in essence, that the trial judge reached an unreasonable verdict by relying on irrelevant reasons to reject the appellant's blanket denial of the offences.

[12] Although, read in isolation, some of the reasons cited by the trial judge for rejecting the appellant's evidence may appear to be of questionable relevance, we accept the submission of the Crown that, read in the context of the record and the reasons as a whole, it is clear that the trial judge's reasons for rejecting the appellant's evidence are based on evidence that corroborates the complainant's allegations.

[13] This case turned on credibility. The trial judge did not believe the appellant's denial that sexual contact occurred. This was a finding that was open to him on the record.

[14] The trial judge then concluded that the appellant's testimony did not raise a reasonable doubt as to his guilt.

[15] The trial judge's acceptance of the complainant's evidence, which he found was corroborated by, among other things, evidence of the unusually close relationship between the appellant and the complainant, "clingy behaviour," and physical contact including embracing, holding hands, and sitting on the appellant's lap, necessarily entails the rejection of the appellant's evidence, as in R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69.

[16] The trial judge was entitled to believe the complainant, despite inconsistencies in her evidence. He reviewed her evidence thoroughly, in an age-sensitive manner, and explained why he accepted it. He properly took into account that her recollections began when she was a child and that she had a limited ability to recall some details and was uncomfortable discussing intimate sexual acts. As noted above, he also took into account the fact that the core allegations were maintained as the complainant, who was 15 years old at the time of trial, grew up. He acknowledged the inconsistencies in the complainant's testimony and found her credible nonetheless. There is no basis to impugn his decision to accept her evidence.

[17] The appeal is dismissed.

Disposition

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.