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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-07-05

Docket: C65038

Panel: Doherty, MacPherson and Benotto JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.T. Appellant

Counsel

For the Appellant: Jeff Marshman

For the Respondent: Sarah Shaikh

Hearing

Heard: July 4, 2019

On appeal from: The convictions entered on November 17, 2017 by Justice Jocelyn Speyer of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant D.T. appeals from convictions for two counts of sexual assault, two counts of touching a person under 14 for a sexual purpose, and two counts of invitation of a person under 14 to sexual touching. All these offences were alleged to have taken place in 1995 and 1996 when the appellant, then a 21-year old student at Seneca College, lived with the complainant's family in homes in Scarborough, Pickering and Uxbridge. The complainant was nine years old at the time.

[2] The trial judge convicted the appellant on six counts in an eight count indictment. She acquitted on two counts of sexual assault that allegedly took place while the complainant was sleeping. The appellant does not advance inconsistent verdicts as a ground of appeal.

[3] The complainant, his two sisters, who were 11 and 8 years old at the time of the alleged offences, and his parents all testified at the trial. The appellant also testified and flatly denied the allegations. The trial judge disbelieved the appellant. She instead preferred the evidence of the complainant, whom she found credible and reliable, as well as the evidence of the appellant's younger sister who recalled seeing the appellant and complainant playing a kissing game on one occasion. Neither the complainant's parents (his father was separated from his mother and was not living in the three homes in 1995-1996) nor his older sister gave any direct evidence about the alleged sexual offences.

Grounds of Appeal

[4] The appellant raises three grounds of appeal.

First Ground: Character Evidence

[5] First, the appellant contends that the trial judge erred by dismissing the appellant's proposed character evidence as inadmissible.

[6] This issue arises from questions defence counsel asked about the appellant's many years as a youth hockey coach after he stopped living with the complainant's family:

Q. No one told you there was an active investigation.

A. No.

Q. You're just assuming there was?

A. Well, I was told when I was being …

Q. I don't wanna be told unless, unless it was somebody in this room that told you.

A. It was.

Q. Okay, what were you told?

A. I was told when I was being arrested that they were going to look into every possible avenue to …

Q. Okay.

A. … see if, um, to see if there were any other allegations.

Q. Okay. Did you, have you learned of any other allegations?

A. No.

Q. Okay.

[Crown counsel]: And I'm not sure much turns on it, 'cause I don't think it's relevant, but, I, I do object to that hearsay. There's not an exception to the hearsay rule, for people in the room, so, I object.

[Defence counsel]: Well, if it was, unless it was the investigating officer, we may call her, on that point, and then it wouldn't be hearsay.

THE COURT: But what would it be relevant to?

[Defence counsel]: That there's been no other allegations throughout his hockey career, and coaching at various stages.

THE COURT: And if there were, I couldn't use that propensity evidence as proof of guilt.

[Defence counsel]: That's fine, thank you. I'll move forward.

[Emphasis added.]

[7] The appellant says that the trial judge erred in making this ruling.

[8] We are not persuaded by this submission. In our view, what the trial judge said in this exchange was a comment (and one that favoured the appellant), not a ruling. Defence counsel reacted to the comment, and abandoned this line of questions. He did not ask for, or even suggest, that he wanted a formal ruling on whether he could introduce character evidence on behalf of the appellant. In any event, evidence that the police had investigated the appellant's role as a hockey coach of young boys and not laid criminal charges would not constitute evidence of good character and would be irrelevant.

Second Ground: Innocent Collusion

[9] Second, the appellant submits that the trial judge failed to properly consider the evidence of collusion, especially between the complainant and his younger sister. The appellant does not say that the sister concocted her testimony to support her brother's testimony. Rather, the appellant claims that there was a real possibility of 'innocent collusion' caused by a combination of the passage of time, the two siblings' relationship, and a family discussion, years prior, about possible problems in the relationship between the appellant and the complainant. The appellant submits that the trial judge failed to consider the possibility of this type of 'innocent collusion': see R. v. M.B., 2011 ONCA 76, at para. 18.

[10] We do not accept this submission. In our view, the trial judge's reasons, read as a whole, make clear that she found that there was no direct collusion between the complainant and his sister, nor was there any reason to conclude that there was any indirect or innocent influencing of the sister's evidence.

[11] On the latter point, the trial judge said:

MP's [the sister's] evidence, if believed, provides significant corroboration of ZP's [the complainant's] evidence. There is no doubt that MP believes her brother is telling the truth about what happened and that she is very close to him. Her belief in her brother is obviously not relevant to my consideration, other than in aid of the defence position that she was not an objective, disinterested witness.

There is no doubt that when he went to the police, ZP telephoned MP and asked her if she remembered the Breathing Game. Notwithstanding her interest, and the opportunity to discuss the events with her brother, I believe MP.

Her memory was clear and detailed, and did not mimic ZP's account.

[12] In our view, this passage is a clear and direct response to the 'innocent collusion' ground of appeal. The trial judge dealt with the issue and reached a conclusion that was open to her.

Third Ground: Uneven Scrutiny of Evidence

[13] Third, the appellant asserts that the trial judge erred by applying a stricter standard of scrutiny to defence evidence than to the Crown evidence.

[14] We disagree. In R. v. Gravesande, 2015 ONCA 774, this court said, at para. 19:

For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trail judge's credibility assessments. …

[15] There is nothing in the trial judge's reasons, in length or in content, dealing with the credibility of the Crown witnesses and the appellant to suggest uneven scrutiny.

Disposition

[16] The appeal is dismissed.

"Doherty J.A."

"J.C. MacPherson J.A."

"M.L. Benotto J.A."