Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2020-05-28 Docket: C64708

Doherty, Juriansz and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.R. Appellant

Counsel: Richard Litkowski and Jessica Zita, for the appellant Jennifer Trehearne, the respondent

Heard: May 19, 2020 via videoconference

On appeal from the convictions entered by Justice K.A. Sherwood of the Ontario Court of Justice, dated August 29, 2017, and on appeal from the sentence imposed on November 28, 2017.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual assault. The offences occurred in 1996 and 1997, but were not reported until years later. The appellant was charged in 2016, convicted in August 2017, and sentenced to 14 months in November 2017. He appeals conviction and sentence. The appellant has been on bail pending appeal for 2½ years.

[2] For the reasons that follow, the appeals are dismissed.

[3] The two complainants, J.P. and C.P., are cousins. In 1996 and 1997, J.P. and her mother shared a duplex with J.P.’s grandmother. J.P. and her mother lived on one side and her grandmother lived on the other side.

[4] C.P. often came to visit her grandmother and played with J.P. They moved back and forth between the two parts of the duplex. At the relevant time, J.P. was five or six and C.P. was between eight and ten.

[5] J.P.’s mother was involved in a relationship with the appellant. He was often at the duplex.

[6] J.P. and C.P. both described being sexually assaulted by the appellant on two occasions. All four occasions occurred at the duplex when the complainants were very young. All four incidents involved the appellant putting his hand under the complainants’ clothing, including their underpants. On at least three of the four occasions, he digitally penetrated the complainants’ vaginas. On three of the four occasions, the complainants were sitting on the appellant’s lap or knee.

[7] J.P.’s mother testified. She recalled an incident when she saw the appellant put his hands under J.P.’s covers and near her “private area”. She told the appellant to get away from her daughter. This incident was quite similar to one of the assaults described by J.P.

[8] In addition to describing the two sexual assaults, J.P. also testified that the appellant photographed her and C.P. when they were in the bath together. J.P.’s mother confirmed that the appellant took a picture of J.P. alone when J.P. was in the shower. C.P. testified that she was not aware of any photos being taken of her when she was in the bath or shower.

[9] The appellant testified and denied the allegations. He indicated he had a brief relationship with J.P.’s mother in late 1996 and early 1997. He ended the relationship because of her “lifestyle”. J.P. and the appellant ended up in a custody dispute over their son. The appellant eventually got custody.

[10] The appellant admitted taking a photograph of J.P. when she was in the bathtub. He indicated that J.P.’s mother had asked him to take the photograph.

[11] Several witnesses called by the defence gave what the trial judge properly characterized as character evidence for the appellant. They had little to say about the events giving rise to the charges.

The Conviction Appeal

[12] There are two grounds of appeal:

• Did the trial judge err in admitting the evidence directly relevant to one count as similar fact evidence on the other counts?
• Did the trial judge apply different levels of scrutiny as between the complainants’ evidence and the appellant’s evidence?

The Similar Fact Evidence Ruling

[13] The trial judge ruled the evidence directly relevant to each count was admissible on the other counts. He held the evidence was admissible to prove the actus reus of the allegations in each count. In so holding, the trial judge referred to the many similarities between the allegations of the two complainants, and the absence of any evidence of collusion.

[14] The appellant does not take issue with the trial judge’s determination the evidence on each count had probative value on the other counts. He submits, however, the trial judge failed to balance that probative value against the prejudicial effects of admitting the evidence across counts.

[15] The trial judge gave detailed reasons for admitting the evidence. He specifically identified the issue on which the evidence had probative value. The trial judge described, on at least two separate occasions, the nature of the potential prejudice inherent in the admission of similar fact evidence. He was obviously alive, both to the probative value of the evidence and the nature of the potential prejudice inherent in the evidence.

[16] This was a judge alone trial. There was no objection to the joinder on the same information of all four counts. It was understood the trial judge would hear the evidence on all counts. He specifically alerted himself to both the legitimate and the illegitimate purposes for which the evidence can be used. In deciding to admit the evidence, he was obviously satisfied the legitimate probative value of the evidence outweighed any risk of misusing the evidence. Indeed, it is difficult to see any risk that this trial judge would misuse the evidence after repeatedly and accurately identifying how the evidence could and could not be used.

The Uneven Scrutiny Argument

[17] As with most allegations of sexual assaults against children, the outcome at trial turned, to a large extent, on the trial judge’s assessment of the credibility of the witnesses. The trial judge dealt at length with the credibility and reliability of the complainants’ testimony. He also addressed the appellant’s credibility. He did so in the context of the presumption of innocence and the burden on the Crown to prove its case beyond a reasonable doubt.

[18] The trial judge ultimately rejected the appellant’s evidence as untrue. He believed the complainants’ evidence.

[19] The appellant’s complaint that his evidence was subject to a more rigorous examination than the complainants’ evidence seems based in large measure on the different assessments ultimately made by the trial judge. Not surprisingly, the evidence of the complainants and the evidence of the appellant gave rise to very different credibility considerations. The trial judge concluded that the appellant’s veracity was tainted by his obvious animus towards J.P.’s mother. Nothing in the complainants’ evidence raised a comparable credibility related issue.

[20] We see little value, for the purposes of appellate review, in comparing the trial judge’s assessment of the impact on the appellant’s credibility of his animus towards J.P.’s mother with the trial judge’s assessment of the impact on the complainants’ credibility of some entirely different feature of their evidence. A trial judge’s finding that factor “A” had a negative impact on the assessment of one witness’s credibility, but a completely different factor “B” did not have the same impact on the assessment of a different witness’s credibility is not uneven scrutiny. To the contrary, it reflects a proper individualized assessment of the different evidence offered by the different witnesses.

[21] The trial judge did not err in the manner in which he approached and assessed the evidence of the witnesses.

The Sentence Appeal

[22] The appellant was sentenced to 14 months concurrent on the charges. The defence at trial sought a conditional sentence. They renew that request on appeal.

[23] A conditional sentence was legally available. It would, however, have been inappropriate. These were serious crimes committed against very young victims. The appellant took advantage of his access to the duplex through his friendship with J.P.’s mother to commit the crimes. The nature of the offences fully warranted a significant reformatory sentence. Nothing in the character or antecedents of the appellant supports the imposition of a non-custodial sentence. The sentence imposed was fit.

[24] The appellant’s bail pending appeal was varied to allow him to surrender into custody, as directed by the court. As his appeals have been dismissed, he shall surrender into custody by no later than noon on Friday, May 29, 2020, failing which a warrant may issue for his arrest.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“B.W. Miller J.A.”