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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200114 Docket: C64036

Before: Pardu, Brown and Huscroft JJ.A.

Between: Her Majesty the Queen, Respondent and K.R., Appellant

Counsel: James Harbic and Robert Harbic, for the appellant Jennifer A.Y. Trehearne, for the respondent

Heard: January 10, 2020

On appeal from the conviction entered on April 29, 2016 by Justice Ronald M. Laliberté of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual interference against his step-daughter, M.T., who accused him of rubbing and penetrating her vagina with his fingers on several occasions when she was between 7 and 14 years of age. The appellant was acquitted of sexual abuse charges against his biological daughter, A.T.

[2] The appellant raises the following arguments on appeal:

1. The trial judge engaged in impermissible speculative reasoning in rejecting the evidence of K.R. when he relied on hearsay evidence of the statements and behaviour of the complainants’ mother, J.T.
2. The trial judge placed undue weight on the demeanor of M.T. in assessing her credibility, while ignoring relevant inconsistencies in her testimony.
3. The verdict is unreasonable.

[3] At the conclusion of the hearing we dismissed the appeal with reasons to follow. These are our reasons.

The trial judge was entitled to reject the appellant’s evidence

[4] M.T., and A.T. testified at trial, along with the appellant. The trial judge found that M.T. was credible, but rejected the evidence of A.T. and the appellant.

[5] It was open to the trial judge to find that the appellant was not a reliable witness and that his evidence was not credible. As to reliability, the appellant acknowledged that his memory was harmed by two drug overdoses; that he sometimes has difficulty remembering things; and that he told the police that some of his memory had been “erased”. These memory problems undermined the appellant’s evidence that he was never alone with the children at any time, despite his insistence to the contrary.

[6] The appellant testified that he did not bathe the children after they were no longer infants; that he was never left alone with the children when J.T. went shopping; that he never put the children to bed; and that he never played with them in their bedroom. He acknowledged skiing and skating alone with the children, but said that there were other people around when he went swimming with them. The appellant acknowledged only that he was “not basically alone” with the children while watching television in the living room, as J.T. would be in the kitchen cooking and would walk in and out of the living room.

[7] The trial judge’s finding that it was highly improbable that the appellant would never have been alone with his daughters is supported by the evidence and is reasonable. The trial judge considered that the appellant’s evidence on this point was an attempt to exclude any opportunity for him to commit the offences. The same is true of the appellant’s evidence that he went onto the roof because it was leaking, and not to spy on M.T. while she was in the bathroom. It was open to the trial judge to conclude that the appellant was neither reliable nor credible and that his evidence did not raise a reasonable doubt.

[8] The trial judge’s credibility findings do not depend on hearsay evidence or speculation concerning J.T.’s reaction when M.T. told her that the appellant had abused her. Nor does M.T.’s evidence that her mother was at home at the time of some of the abuse undermine the trial judge’s finding that the appellant was not credible. M.T.’s evidence was that the mother was elsewhere in the home at the time, occupied with watching television, having a cigarette or a coffee, or cooking. The trial judge’s credibility and reliability findings are entitled to deference and there is no basis for this court to interfere with them.

The trial judge was entitled to accept MT’s evidence

[9] The appellant submits that the trial judge erred by emphasizing the demeanour of M.T. in determining her credibility and reliability, despite the lack of details and inconsistencies in her testimony.

[10] We disagree.

[11] The trial judge found that M.T.’s evidence was both detailed and internally consistent, and highlighted several reasons for finding that she was reliable and credible. He found that M.T.’s evidence was confirmed in a number of ways by external evidence, including the appellant’s evidence. He acknowledged that M.T. was wrong in believing that the appellant had cut her door in half so as to deny her privacy, as the door was already cut when they moved into the home. But it was open to the trial judge to find that this was not a significant point in the context of her evidence as a whole. Although the trial judge remarked that M.T.’s demeanour was “appropriate”, her demeanour did not play a significant role in the trial judge’s findings. He specifically cautioned himself that demeanor is not, in and of itself, an appropriate means of measure for reliability and/or credibility.

[12] In summary, there is no basis to interfere with the trial judge’s findings on reliability and credibility of M.T.

The verdict is not unreasonable

[13] It is well established that there is a high bar to meet to establish that a verdict is unreasonable. The appellant simply repeats what he regards as frailties in the evidence of the complainant and asserts a failure of the trial judge to understand or apply the evidence. This does not come close to establishing that the verdict was unreasonable.

[14] The trial judge was alive to the burden of proof, as reflected in his decision to acquit the appellant on charges related to his daughter A.T. He properly applied the law as set out in R. v. W.(D.), [1991] 1 SCR 742. Having rejected the evidence of the appellant and found that it did not raise a reasonable doubt, he was satisfied that the evidence established guilt beyond a reasonable doubt. There is no basis to interfere with his decision.

Conclusion

[15] The appeal is dismissed.

“G. Pardu J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”