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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-02-07

Docket: C62787

Panel: Sharpe, Benotto and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

V.J. Appellant

Counsel:

• Lori Anne Thomas, for the appellant
• Linda Shin, for the respondent

Heard and released orally: February 5, 2019

On appeal from: The conviction entered on December 11, 2015 by Justice Jane Ferguson of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of sexual assault, sexual interference and invitation to sexual touching following a judge alone trial. The complainant is the appellant's stepdaughter. The alleged abuse occurred over a ten-year period. The appellant did not testify but he called a defence attempting to establish that, during the entire ten-year period, he was never alone with his stepdaughter and that he had no opportunity to abuse her. The appellant also sought to establish that his stepdaughter had a motive to fabricate the abuse arising out of the conflict with the appellant concerning chores and her living arrangements.

[2] The no opportunity defence essentially collapsed when the complainant's mother admitted that the appellant had been alone with the complainant on occasion. The Crown led evidence of a prior consistent statement to rebut recent fabrication.

[3] In her factum, the appellant's counsel raises five grounds of appeal discussed below. In oral argument, counsel focused on three grounds: motive to lie; recent fabrication; and collusion.

1. Failure to consider material evidence relating to the credibility of the complainant

[4] We do not accept the submission that the trial judge erred by failing to resolve material contradictions between the evidence of the complainant and the appellant's daughter L.J. The trial judge did consider L.J.'s evidence and found that, for the most part, it corroborated that of the complainant. The most significant alleged discrepancy related to the so-called cottage incident where the appellant allegedly exposed himself. While L.J. denied that she had seen the appellant expose himself, she admitted that she could have uttered the words reported by the complainant in relation to something else. Other alleged contradictions related to the appellant's opportunity to commit these assaults and whether L.J. had witnessed any assaults. As already noted, the lack of opportunity defence was weak, and even if L.J. did not witness the offences they could well have occurred.

2. Assessing the complainant's evidence according to the standard applicable to young persons

[5] The trial judge referred at length to the leading cases establishing the test for assessing the evidence of an adult witness as to events that occurred when the witness was a child. We do not agree that the trial judge erred in law by misapplying that test and treating the complainant as a child witness. She provided detailed reasons explaining why she accepted the complainant's evidence, explaining that minor inconsistencies and discrepancies were to be expected when describing a pattern of abuse over the course of a lengthy period during which the complainant was a child. That did not amount to treating the complainant as a child witness.

3. W.(D.) and uneven analysis of the evidence

[6] We see nothing in the reasons of the trial judge to indicate that she applied a different standard of scrutiny to the appellant or made a R. v. W.(D.), [1991] 1 S.C.R. 742 error regarding the defence evidence. The trial judge explained why the evidence of the complainant's mother as to lack of opportunity did not stand up to scrutiny and why she did not find the evidence of L.J. or the other defence witness, S.L., raised a reasonable doubt. In the circumstances of this case, we do not agree that anything more was required.

4. Motive to fabricate and 5. Collusion

[7] We see no basis to interfere with the trial judge's rejection of the complainant's alleged motive to fabricate or her finding that there had been no collusion between the complainant and the friend to whom she had complained of the alleged abuse. The friend provided an account of what the complainant told her and testified there had been no collusion of any kind. The trial judge accepted the friend's evidence. Particularly in light of the rather distant relationship between the complainant and friend by the time of trial, the finding of no collusion was amply supported.

Disposition

[8] For these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe J.A. M.L. Benotto J.A. David Brown J.A.