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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. C.C., 2020 ONCA 396

DATE: 20200619

DOCKET: C67431

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

C.C., acting in person

Jessica Smith Joy, for the respondent

Heard: June 15, 2020 by Videoconference

On appeal from the convictions entered on February 28, 2018 and the sentence imposed on September 5, 2018 by Justice Brenda M. Green of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of sexual interference with a person under 16 years of age and invitation to touching with a person under 16 years of age.

[2] The complainant was eight to nine years old at the time of the alleged incidents. Her parents were separated. The complainant’s principal residence was with her mother. Her father had liberal access and the complainant spent some weekday nights and every second weekend at his home.

[3] The appellant was the complainant’s father’s best friend and lived in his house. He was very close to the complainant who regarded him as an ‘uncle’. The father trusted the appellant explicitly and the complainant and the appellant were often alone together in the house.

[4] In 2016, when the complainant was 15 years old, she told a school guidance counsellor, then her parents, and finally the police that in 2009/2010, when she was eight to nine years old, the appellant sexually assaulted her. These assaults, she said, took place one to two times per week for about a year.

[5] At the trial, the complainant, her mother and her father testified. Although in her testimony the complainant described a year-long pattern of sexual abuse on many occasions, she focused on three incidents that she specifically described in detail: the birthday incident, the pornography incident, and the sexual intercourse incident.

[6] The trial judge found that the complainant was a reliable and credible witness. She convicted the appellant of sexual assault, sexual interference, invitation to sexual touching, and exposing his genitals. The sexual assault and exposing genitals charges were conditionally stayed on the basis of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[7] The trial judge imposed a sentence of six years imprisonment in addition to credit for 56 days of pre-sentence custody. The trial judge observed that the sentence would have been longer but for the fact that the appellant had been on bail for a lengthy period of time before the trial.

[8] The appellant appeals from the conviction and the sentence.

[9] On the conviction appeal, the appellant makes three arguments.

[10] First, the appellant contends the trial judge failed to address credibility and reliability concerns with respect to the complainant’s evidence and ignored flaws in the Crown’s case that were capable of raising a reasonable doubt.

[11] We do not accept this submission. The trial judge engaged in a very extensive and careful analysis of the testimony of a teenager trying to recall and describe traumatic events that had taken place approximately nine years before when she was eight or nine years old. The trial judge’s conclusion that the complainant was both credible and reliable was well supported by the evidence she accepted.

[12] Second, the appellant submits that since the trial judge did not accept that actual intercourse took place during one of the alleged assaults, this should have led her to reject the complainant’s testimony about all of the alleged sexual events.

[13] We are not persuaded by this submission. A trial judge is entitled to accept all, some or none of a witness’ testimony. As stated above, in this case the trial judge engaged in a lengthy and careful review of the complainant’s evidence. For the most part, she believed the complainant. On one point – i.e., whether there was actual sexual intercourse on one occasion – the trial judge was entitled to conclude, based on the complainant’s description and the surrounding circumstances relating to her disclosure, that she was not satisfied beyond a reasonable doubt that this component of the complainant’s description of a particular assault was made out. This inured to the appellant’s benefit.

[14] Third, the appellant asserts that the complainant’s willingness to go to the appellant’s basement room belies her testimony that she was sexually abused almost weekly for an entire year.

[15] We disagree. The complainant was an eight-year-old girl who loved and trusted her ‘uncle’. It would be wrong to say that she must have had the intellectual and physical capacity to say ‘No’ to her uncle.

[16] On the sentence appeal, the appellant contends that the trial judge erred by not rejecting the entire incident where the complainant said that actual sexual intercourse occurred.

[17] We disagree. The trial judge was entitled to base her sentence on her findings relating to all of the events, including her partial acceptance of the complainant’s testimony relating to this particular event.

[18] The appellant submits that, in fashioning his sentence, the trial judge did not give sufficient weight to his character letters or his own history of sexual abuse as a boy.

[19] The character letters were very general. Moreover, one of the overriding factors in sentencing a person who has sexually abused a child is to acknowledge the terrible harm child complainants suffer in these situations. The sentence imposed by the trial judge in this case is faithful to that overarching goal.

[20] The conviction appeal is dismissed. The sentence appeal is dismissed except for the $200 victim surcharge per offence, which is set aside.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”