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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. A.A.G., 2020 ONCA 356

DATE: 20200608

DOCKET: C66132

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.A.G.

Appellant

Margaret Bojanowska, for the appellant

Emily Marrocco, for the respondent

Heard: In-writing

On appeal from the convictions entered on December 1, 2015 by Justice Timothy D. Ray of the Superior Court of Justice, with reasons reported at 2015 ONSC 7476.

REASONS FOR DECISION

[1] The appellant was convicted of multiple offences arising from historical sexual assaults of S.M. (the young daughter of his former common law spouse, A.W.), as well as physical assaults of A.W., S.M., and A.W.’s son E.M.

[2] The appellant first met A.W. in 2001. Four months later, he moved in with her and her three children at their home in Surrey, British Columbia. S.M. was then aged 10, E.M. was 8, and A.X., 6. A few months later, in 2002, the family packed into a panel van with improvised seating and travelled for a month to Ontario. They eventually settled in Ottawa after lengthy stays in Windsor and Niagara Falls.

[3] The household was characterized by dysfunction, rampant drug abuse, violence, and neglect. As they travelled, the family attracted the attention of local children’s aid societies.

[4] At trial, S.M. testified to incidents of sexual abuse starting when the family lived in B.C., escalating on the drive to Ontario, and carrying on in the years subsequent. The incidents reported by S.M. included sexual touching, forced oral sex and vaginal intercourse, sometimes facilitated by forced consumption of marijuana or sleeping pills. The charges against the appellant all relate to incidents taking place in Ontario between January 1, 2003 and June 22, 2005.

[5] Once in Ontario, A.W. became increasingly incapacitated by her drug use, mostly keeping to her bedroom. She did not keep a close watch on S.M. Consequently, S.M. was frequently alone with the appellant. On the appellant’s own evidence, he spent much more time with S.M. than the other children, and his attention to S.M. caused conflict with A.W. Even after he split from A.W. and moved out of the family’s residence in Ottawa, he still walked S.M. to school. According to the appellant, he would sometimes take S.M. to the house where he was living instead of going to school, if he thought her clothing was inappropriate for school. The appellant testified that S.M. missed approximately 50 days of school that year. S.M. testified to frequent sexual abuse during this time, including being forced to take crack, marijuana, and sleeping pills, view pornography, and submit to the appellant’s sexual acts.

[6] In June 2005, S.M. contacted the Children’s Aid Society from a shelter to report that she and her siblings were being neglected – without proper accommodation or food. The CAS apprehended the children on June 22, 2005 and placed them in foster care with supervised visits from their mother and the appellant. S.M. did not report sexual abuse to the CAS at that time.

[7] After living in foster care in Ontario, S.M. moved in 2007 to the United States to live with her father. She testified that she began selective and partial disclosure of the sexual abuse to her mother and friends while in foster care. She wrote at length of the sexual abuse in a book, as part of a grade 12 writing project. She subsequently reported the abuse to the police in Ottawa in 2012 through a written statement.

[8] E.M. and A.W. each also reported incidents of physical abuse by the appellant.

[9] The appellant was convicted of assault for an incident in which he choked A.W., and he was convicted of assault and assault with a weapon for hitting E.M. with sticks and a belt. With respect to S.M., the appellant was convicted of sexual assault, sexual interference, invitation to sexual touching, administering a stupefying or overcoming drug, and assault.

[10] The appellant appeals against his convictions on the following grounds:

(i) the trial judge applied the wrong standard in assessing S.M.’s evidence;

(ii) the trial judge made improper use of the appellant’s criminal record in assessing the appellant’s credibility;

(iii) the trial judge failed to consider a number of material inconsistencies in the Crown’s case in assessing credibility;

(iv) the trial judge applied different standards of scrutiny to Crown evidence than to defence evidence; and

(v) the trial judge erred in finding the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), had been violated, and in drawing an adverse inference against the appellant.

A. Analysis

(i) Standard for assessing the credibility of S.M.

[11] S.M. was a 24-year-old woman at the time of trial, testifying about events that occurred when she was approximately 10 to 14 years old. The trial judge correctly noted that he was required to assess her credibility using the criteria applicable to adult witnesses. But in assessing her credibility, the trial judge was entitled to make allowances for errors attributable to the fact that she was recalling memories that were formed through the perceptions she had as a child: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, atp. 134. Where such recollections appear faulty, and the perceptions relate to peripheral matters, these faults need not negatively impact the trial judge’s assessment of the witness.

[12] As is the case with most allegations of sexual assault against children, the outcome largely turned on the trial judge’s assessment of the witnesses. The trial judge found S.M. to be credible. The trial judge did not, however, accept S.M.’s evidence about the frequency of the sexual abuse – that she was sexually abused every day on the trip from British Columbia or that it was “persistent, constant, and unrelenting” thereafter. He accepted that it may have seemed to her as a child that sexual abuse was “a daily occurrence”, but that “it was probably not daily”. Ultimately, he accepted that the sexual assaults occurred in the way that S.M. described them, but “perhaps with less frequency”. He did not find this inaccuracy to be “a marker of unreliability” but “more likely a marker of the memory of a child”, and he observed that she recalled “without hesitation in a chronological fashion the events that occurred”.

[13] The appellant argues that the trial judge erred in finding the frequency of alleged assaults to be a peripheral matter, and in not attributing more weight to S.M.’s exaggeration in assessing her credibility. We do not agree. Trial judges are entitled to significant deference in assessing the credibility of witnesses: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 48-49. S.M.’s evidence was that the appellant was prolific in his abuse of her. The frequency with which the assaults were alleged to have happened was by no means a trivial matter, but in the context of historical offences said to have occurred repeatedly over a period of several years, we cannot say that the trial judge erred in placing the weight he did on the complainant’s characterization of the frequency of the abuse.

(ii) Use of the appellant’s criminal record

[14] The trial judge noted the appellant’s lengthy criminal record, and found that the serious nature of some of those offences, “not only go to the defendant’s credibility, but also to the violence of many of his offences”. The appellant argues that the trial judge thereby wrongly used his criminal record for the prohibited purpose of reasoning that he likely committed the offences because his record reflected a propensity to commit violent offences.

[15] We do not agree. The trial judge did not reason that because the appellant had been convicted of violent offences he was for that reason a violent person and was therefore more likely to have committed the offences.

[16] The trial judge rejected the appellant’s evidence. He gave many reasons for doing so. Among these, the most important were the contradictory and evasive nature of much of his testimony, his refusal to concede clear errors in his testimony, his inability to remember past events with clarity, and what the trial judge perceived to be a lack of candour about having taken an illicit substance during the lunch break while he was testifying.

[17] The appellant’s criminal record was an appropriate matter for the trial judge to consider in assessing credibility. The passage to which the appellant objects is a single half-sentence at the very end of a lengthy paragraph in which the trial judge assesses the appellant’s credibility. It appears to be almost a footnote or afterthought and is not integrated into the trial judge’s chain of reasoning.

[18] Furthermore, as the Crown argues, the appellant made his violent history central to his defence. In cross-examination of the Crown witnesses, defence counsel repeatedly raised the issue of violence in the family home in order to highlight situations in which E.M. and S.M. spoke to police officers and CAS caseworkers but did not disclose the allegations of abuse. Moreover, the defence advanced the theory that S.M. blamed the appellant for bringing violence, drug abuse, and chaos into her family, and she therefore fabricated these allegations against him as retribution.

[19] The trial judge’s comment about the appellant’s history of violence was not needed for his analysis and did not contribute to it. Nevertheless, it did not constitute reversible error.

(iii) Material inconsistencies

[20] The appellant argues that there are material inconsistencies in the evidence that the trial judge was obliged to resolve but did not. We do not agree.

[21] Many of the inconsistencies that the appellant identifies are more apparent than real: accounts that are in some respects different, but not inconsistent. Some genuine inconsistencies that the appellant identifies relate to peripheral, non-material matters. A trial judge is entitled to deference in determining the significance to place on any inconsistencies in the evidence, particularly with respect to how those inconsistencies bear on the assessment of the credibility of witnesses.

[22] The appellant places particular emphasis on inconsistencies related to S.M.’s disclosure of the sexual abuse to her mother. On A.W.’s account, in the telephone conversation where S.M. first disclosed that the appellant had sexually abused her, she only disclosed sexual touching. When A.W. pressed S.M. for more details by asking “did he do more than that?”, A.W.’s evidence was that S.M said no but “it sounded like she didn’t wanna tell me more than what she knows”.

[23] S.M.’s evidence was different:

Q. [Y]ou tell [A.W.] that [the appellant] used to touch you, right?

A. Yeah, and more.

Q. Well how much detail did you get into?

A. Not too much, but I just stated the facts.

Q. But not detail, just that he raped and molested you for years, right?

A. Yeah.

[24] The inconsistency is that S.M. agreed on cross-examination to the proposition that she told A.W. about having been repeatedly raped as well as molested, whereas in A.W.’s account, she specifically asked S.M. if the appellant had done anything more than fondle her, and S.M. had said no.

[25] The trial judge clearly preferred the evidence of S.M. to A.W. He gave reasons for why he found A.W.’s evidence “overall” to not be “particularly impressive”: at para. 89. In characterizing her evidence in this way, the trial judge made reference to her heavy drug use during the time of the sexual abuse, which he found impacted her ability to observe events and accurately remember them. The appellant objects that the trial judge ought not to have discounted her testimony about the details of the conversation of S.M.’s disclosure on the basis of her historical drug impairment, as by that time she had been sober for many years.

[26] But the trial judge did not reject all of A.W.’s evidence, nor did he place undue weight on her historical drug use. His other basis for viewing her evidence with skepticism was her defensiveness at trial, in response to the suggestion that she had been, and continued to be, a poor mother. On A.W.’s account, she interrogated S.M., seeking to pull the truth of what the appellant did, while S.M. thwarted her efforts. On S.M.’s account, A.W. did not, and was not receptive to what she was told. The trial judge was entitled to doubt A.W.’s credibility on matters that tended to put her parenting in a bad light.

[27] The appellant has not made out the claim that the trial judge did not consider material evidence when making credibility assessments.

(iv) Uneven scrutiny

[28] A related ground of appeal is that the trial judge held the appellant’s evidence to a more rigorous standard than that of S.M. This ground of appeal is framed largely as a repetition of the arguments already rejected about the trial judge’s failure to engage with material inconsistencies in the evidence, and his preference of S.M.’s evidence over the appellant’s. For the reasons given above, the argument is rejected.

[29] Additionally, the trial judge gave lengthy reasons why he disbelieved the appellant’s evidence. His evidence was internally inconsistent and contradictory. He was a heavy crack cocaine user at the relevant time, which affected his memory. He was stubborn and evasive. He appeared intoxicated while giving evidence, which he attempted to explain away as the effect of taking prescription medication over the lunch break while in custody, an explanation that was contradicted by police officials who had care of him at the time.

[30] The trial judge similarly gave lengthy reasons why he believed S.M.’s account, including explaining why the evidence that he rejected did not impact on his finding that she was a credible witness. He drew on evidence of the appellant and A.W. that corroborated her account in several respects, particularly with respect to their evidence about an incident of inflammation of S.M.’s vagina, which the trial judge accepted as corroborative of S.M.’s account of sexual abuse by the appellant.

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

(v) Browne v. Dunn

[32] There is no merit to the appellant’s argument that the trial judge improperly applied the rule in Browne v. Dunn to the detriment of the appellant. The remarks the trial judge made about Browne v. Dunn during the trial were provisional and equivocal, and made no appearance in his reasons for judgment. As canvassed above, the trial judge had ample reason to disbelieve the evidence of the appellant, and there is no indication in his reasons that he drew an adverse inference on the basis of a violation of the rule in Browne v. Dunn. Even if he had drawn an adverse inference, it would have been entirely superfluous for him to have done so.

B. Disposition

[33] The appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”