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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. T.C., 2020 ONCA 469

DATE: 20200720

DOCKET: C66715

Pepall, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.C.

Appellant

James Foord and Brandon Crawford, for the appellant

Megan Petrie, for the respondent

Heard: June 5, 2020, by video conference

On appeal from the conviction entered on October 21, 2018, by Justice Michelle O’Bonsawin of the Superior Court of Justice, with reasons reported at 2018 ONSC 6338.

REASONS FOR DECISION

I. Introduction

[1] The complainant, VC, alleged that her brother, the appellant TC, sexually assaulted her on an almost daily basis from the time she was four until she was approximately 16 or 17 years old. She reported the assaults to the police years later as an adult.

[2] TC was charged with one count of sexual assault, one count of incest, two counts of sexual assault with a weapon (a hairbrush and a doll), and two counts of mischief for damaging VC’s property, namely her dolls, clothing, and bedding. Each charge encompassed multiple incidents and spanned a 13 to 15-year period. TC was convicted on all counts.

[3] TC raises the following issues on appeal:

(1) The trial judge erred in law by misapprehending the importance of the evidence of AM, his ex-wife, and/or failing to provide meaningful reasons as to how that evidence could be reconciled with that of VC; and

(2) the trial judge erred in law by applying uneven scrutiny to the Crown and defence evidence.

[4] For the following reasons, we dismiss the appeal.

II. Background Facts

[5] TC is four years older than VC. CC is their father, and JC is their mother. VC testified that the sexual abuse began with touching when she was four years old, and progressed to digital penetration and penetration with objects such as a hairbrush and toothpaste tubes. VC testified that TC would insert his penis inside her vagina, the first time being when she was seven or eight years old. He would also occasionally penetrate her anally with his fingers.

[6] VC gave evidence that when she was approximately in grade five, TC started playing with his penis near her mouth, and it progressed to him putting his penis inside of her mouth. She says that when TC would babysit her, he would masturbate, urinate and defecate on her. VC alleges that there was one incident when she was 14-15 years old when TC defecated inside her mouth while she was asleep. TC is also alleged to have masturbated on VC’s belongings, including her underwear, dolls, hairbrush and bed. VC testified that she disclosed to AM that TC had abused her. She says that there were two occasions when another person witnessed a sexual assault by TC: once by a relative who was VC’s age, and on another occasion by her father.

[7] At trial, the Crown called a forensic scientist who testified that TC’s semen was found on two of VC’s dolls.

[8] TC did not testify at trial. However, the defence called VC and TC’s parents, as well as AM, as witnesses. The father denied witnessing a sexual assault, and both parents stated that they had never noticed urine or feces on furniture or bedding. AM testified that sounds would be heard throughout the house because the walls were thin, that VC never disclosed the sexual abuse to her, and that she never smelled urine or feces in VC’s bedroom.

[9] The Crown called VC’s pediatrician in reply to respond to JC’s evidence that she took VC to see the doctor because she was concerned that TC might have sexually assaulted her. The pediatrician had no recollection of potential sexual abuse being raised with her and had no note in her file to that effect.

[10] The primary issue at trial was the credibility and the reliability of several witnesses’ evidence regarding the allegations of long-term sexual abuse by TC. The defence pointed out that VC’s evidence was inconsistent on the details and timing of various incidents, that new information about various incidents was disclosed for the first time at trial, and that other witnesses contradicted her evidence. The Crown argued that VC was credible and reliable, that any inconsistencies were minor in nature, and that her evidence was corroborated by the forensic evidence of TC’s semen on her dolls.

[11] In her reasons, the trial judge summarized the Crown and defence submissions and reviewed the evidence of each witness in considerable detail. She found that most of the inconsistencies in VC’s evidence were with respect to the time and location of events and that it was understandable that such details would blend in VC's mind. She also found that new details disclosed during VC’s testimony at trial were explained by the fact that VC was asked more questions than previously and that these new questions elicited further information. The trial judge did not find JC and CC to be credible or reliable witnesses but accepted AM's testimony regarding the house's acoustics. Ultimately, the trial judge was satisfied that the Crown had proven all of the charges beyond a reasonable doubt and convicted TC on all counts.

III. Analysis

(1) AM’s Evidence

[12] AM was the last defence witness. She testified briefly about the acoustics in the home, what she observed and smelled while in VC’s bedroom, her alleged conversations with VC about the abuse, and communications with VC after VC had left the family home.

[13] The trial judge summarized AM’s evidence in her reasons and later commented as follows:

For her part, AM gave her evidence in a forthright manner. She was not combative during cross-examination, but very matter of fact. AM testified about two main areas: the acoustics of the house and VC’s disclosure to her about being sexually abused by her brother. AM testified that she went to VC and TC’s house for the first time in 2001. With respect to AM not smelling any odours in VC's bedroom, it is important to note that this was in 2001 and afterwards when VC was eighteen years old and TC was twenty-two years old. By this time, as per VC’s evidence, the sexual assaults had stopped. It is therefore logical that there would not have been any odour by that time and if there was, VC laundered her bedding. AM also denied that VC told her about being sexually assaulted by TC.

AM described VC’s complaints as a revenge tactic because she was angry at TC for breaking up the family business. AM testified that there was a Facebook message that demonstrated VC’s anger, however, it was not tendered as an exhibit. AM’s allegation about VC’s complaint as a revenge tactic is not supported by the evidence. The family business broke up in 2011. VC did not file her complaint with the Guelph police until 2014.

Based on my overall review of AM’s testimony, I accept her evidence regarding the acoustics of the house.

[14] TC submits that the trial judge did not address the significance of AM’s evidence, which was not rejected, and which directly contradicts VC in the following areas:

(a) VC testified that she told AM that TC sexually abused her. AM, on the other hand, testified that VC never disclosed that TC sexually abused her;

(b) VC testified that AM revealed to her that TC was "very, very forceful in the bedroom" towards her. AM testified that this conversation never happened and that she was never subjected to violence in the bedroom by TC;

(c) VC testified that she wanted nothing to do with TC since the time she finished university in 2006. However, AM testified that VC invited TC and AM to her wedding in 2006 and asked that they be witnesses and further that VC sent TC and AM two Facebook messages during this period; and

(d) VC testified that her parents removed the door from her room just before she moved out because she would slam it. AM testified that there was a door on the frame.

[15] TC advances two primary arguments regarding the trial judge’s treatment of AM’s evidence. First, he submits that the failure to consider evidence relevant to a material issue constitutes a misapprehension of the evidence. Second, TC argues that because VC and AM provided two incompatible versions of events, neither of which were rejected, the trial judge was required to provide meaningful reasons as to how this conflict was resolved. His position is that she did not do this and that the failure to articulate how credibility concerns should be resolved constitutes a reversible error.

[16] We do not give effect to either of these submissions.

[17] The Crown concedes that the trial judge could have done a better job in analyzing AM’s testimony. However, the Crown submits that it is inherent in the trial judge’s acceptance of VC’s evidence, and her finding that inconsistencies in VC’s evidence mostly related to peripheral issues, that, to the extent AM’s evidence conflicted with VC’s, the trial judge either did not accept it or did not consider it material to the central issues at the trial or detrimental to VC’s credibility, and was not left in a reasonable doubt on the whole of the evidence. We accept that submission.

[18] It is also essential to carefully review the evidence in issue and place it in the context of all of the evidence at trial. When that exercise is undertaken, it is clear that the trial judge did not fail to consider evidence relevant to a material issue.

[19] The evidence regarding the wedding invitation and the Facebook messages after the alleged abuse was of marginal assistance. Similarly, AM testified that she was only in VC’s bedroom on a few occasions, so her evidence regarding whether VC’s bed smelled and whether VC’s bedroom door was in place was not particularly helpful in assessing VC’s credibility and reliability.

[20] At first blush, the evidence regarding VC’s disclosure of the alleged abuse, and the conversation regarding TC being aggressive with AM, are more relevant. However, the evidence regarding the disclosure of the abuse was quite limited. VC testified that, in the context of a discussion about AM's treatment by her former boyfriends, she told AM that she had been abused when she was younger. She described the conversation after that revelation as follows:

And she said you were abused? By who your brother? And I just, you know, nodded or said yes and I didn't give her any detail as to anything. I had mentioned that he had had another incident as well but again didn't give any detail or real information. Just kind of in passing. It was more brought up in a note of kind of reassurance that, you know, there's – I was hoping it would maybe open something up but it didn't. It just got passed along and continued talking about, about her issues and never spoke of it again.

Later in her testimony, VC confirmed that it would have been clear to AM that she was saying that TC had sexually abused her in the past.

[21] It is evident from this testimony that the revelation consisted of a very brief reference during a discussion about AM’s experiences with past boyfriends “that were abusive or that would hit her … or yell at her and that kind of stuff.” VC did not offer details, and AM did not ask for any. It may have been preferable for the trial judge to deal with this testimony specifically in her reasons. However, from her summary of the evidence, she clearly was aware of the evidence but did not consider it sufficiently material to merit further comment. We are not satisfied that this evidence was of sufficient importance that the trial judge was required to address it.

[22] We reach the same conclusion regarding the alleged discussion between AM and VC about TC being violent in the bedroom. According to VC, she received a call from AM out of the blue wherein AM told her that TC had been violent in the bedroom, and AM asked her for details regarding what happened to her and the other incident she had previously mentioned. VC said that she told AM that she was not comfortable discussing what happened to her and that she had no details regarding the other incident. She suggested AM and TC undergo marriage counselling. This was a conversation that is alleged to have taken place around 2007, years after the alleged abuse. Again, the trial judge was alive to this evidence. However, in our view, she was not obliged to deal with this evidentiary discrepancy in her reasons as it was not important to her determination regarding VC’s credibility and the reliability of her evidence.

[23] Overall, AM’s evidence must be placed in its proper context in the case. AM was not a resident of the family home, and in her very brief testimony, she was not able to shed much light on whether TC had sexually abused VC. The trial judge’s reasons make clear that she was alert to the main inconsistencies between AM and VC’s testimony. It was not an error for the trial judge to assign these inconsistencies less significance than the defence would. Therefore, we do not give effect to this ground of appeal.

[24] We also do not give effect to the related argument that the trial judge provided insufficient reasons regarding AM’s evidence. TC can only succeed on this ground of appeal if he can establish that the reasons are so deficient that meaningful appellate review is foreclosed: R. v. Vlaski, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020] S.C.C.A. No. 78; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. We are not satisfied that TC has met his onus in this regard. In our view, the reasons do not foreclose appellate review. Rather, they explain the basis upon which the trial judge convicted TC. The trial judge describes why she believed VC and disbelieved her parents. These were the critical witnesses at trial, in contrast to AM, whose brief testimony was of marginal assistance.

[25] TC’s real complaint is not that the reasons are so deficient that this court cannot review them, but that the trial judge did not explicitly deal with all of the areas of evidence that he believes she should have. It is well established that it is within the discretion of a trial judge to determine what areas of the evidence should be included in his or her reasons: R. v. A.A., 2015 ONCA 558, 337 O.A.C. 20, at para. 120; Vuradin, at para. 17. A trial judge is also not obliged to reconcile every frailty in the evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 55-56. As explained above, the areas that were not included in the reasons were of limited importance, and the fact that the trial judge did not reference them in her reasons does not render her reasons deficient.

(2) Uneven Scrutiny

[26] TC submits that the trial judge subjected the evidence to uneven scrutiny. Specifically, he argues that VC’s evidence was approached with a relaxed, forgiving, and sometimes circular assessment. In contrast, it is submitted that the defence-led evidence was scrutinized more vigorously or not properly considered.

[27] The basic principles underlying an uneven scrutiny ground of appeal were summarized by Watt J.A. in R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23 to 26, leave to appeal refused, [2017] S.C.C.A. No. 274, as follows:

First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[28] Applying this jurisprudence to the case at bar, we would not give effect to this ground of appeal. TC points to multiple examples that he argues demonstrate uneven scrutiny. Indeed, virtually every aspect of the trial judge’s reasons is relied on in support of this argument. In our view, this is really an invitation to re-try the case. Moreover, as will next be discussed, the arguments advanced in support of this ground of appeal are meritless.

[29] The first alleged example of uneven scrutiny is that the trial judge dismissed the significance of new evidence arising at trial concerning anal penetration, the fact that TC opened VC’s vaginal lips when he first assaulted her, and other matters, including odours in the home. We reject this argument. The trial judge was not concerned about this new evidence because, as she explained in her reasons, at para. 56:

The Defence submits that new details arose during VC’s testimony at trial. It may be so; however, VC provided explanations for these new details. She explained that she was in the process of her recovery and seeking treatment for her issues and was not comfortable at first discussing all the details. However, VC explained that as she discussed more about the sexual assaults, more details came back to her. Lastly, as stated by the Crown, VC provided additional details during her testimony at this trial because she was asked more questions and more details were elicited. This is supported by the transcripts of her police interview dated February 25, 2014, and the Preliminary Inquiry hearing transcript dated April 4, 2017. An absence of detail is not an inconsistency.

[30] This was a finding open to the trial judge and is not an example of uneven scrutiny.

[31] TC next argues that the trial judge failed to deal with inconsistencies between VC’s statements to the police and the details of the abuse in her testimony. We reject this argument. The trial judge specifically noted these inconsistencies and found that they were understandable given the time that had transpired since the assaults and the scope of the alleged abuse. In any event, VC’s precise age when she was subjected to forced intercourse or when her brother defecated in her mouth was not critical.

[32] As another example of uneven scrutiny, TC points to the trial judge’s treatment of AM's evidence that VC sent TC or AM two Facebook messages at a point when VC said she wanted nothing to do with TC. We do not accept that argument. The intended recipient of one of the messages was unclear. In any event, this is another example of evidence that the trial judge concluded was peripheral, as she was entitled to do. The trial judge considered the alleged inconsistency between VC’s testimony and the two Facebook posts, and it is apparent she found these inconsistencies, like the others, were not significant. This argument amounts to nothing more than a complaint that the trial judge failed to say something she was permitted — but not required — to say in her credibility assessment. That does not constitute uneven scrutiny.

[33] The next argument made in support of this ground of appeal is that the trial judge erred by relying on CC's rejected evidence in assessing JC's credibility. We disagree. The areas of conflict between CC and JC’s evidence related to issues such as whether their children played together in the basement, whether JC slept with a sound machine, and whether she had cancer while pregnant with VC. VC's evidence supported CC's evidence on those areas. It was not uneven scrutiny for the trial judge to accept CC’s evidence where it was consistent with VC’s evidence.

[34] TC alleges that the trial judge engaged in circular reasoning by excusing inconsistencies in VC’s testimony on the basis that years of abuse would make it difficult to recall certain details accurately. TC’s guilt was allegedly used to neutralize problems with VC’s evidence, making her evidence strong enough to establish TC’s guilt. We disagree. In our view, it is clear that the trial judge found VC sufficiently credible and reliable for reasons unrelated to any assumption of guilt. The trial judge simply acknowledged that one might expect the kinds of minor inconsistencies identified by TC if the allegations were true, given the nature and duration of the alleged offences, and so the inconsistencies were not determinative of VC’s credibility or reliability.

[35] TC submits that the trial judge’s treatment of the evidence of VC’s pediatrician also demonstrates uneven scrutiny. He notes that the trial judge used the fact that there was no note in the doctor’s file about sexual abuse to undermine JC’s credibility because JC testified that she brought VC to her pediatrician for a visit to see if VC had been sexually assaulted. In contrast, the trial judge did not reference the fact that there was no note in the doctor's file about yeast infections even though VC gave evidence that she went to the doctor’s office because she had regular yeast infections. This is not an example of uneven scrutiny. The evidence regarding whether the doctor had been told about potential sexual abuse was vital because it was contrary to clear evidence from JC that she brought VC to her pediatrician for a visit to see if VC had been sexually assaulted. In contrast, it was unclear from VC’s evidence which doctor she visited to address the yeast infections.

[36] As part of this ground of appeal, TC says that the trial judge made improper use of the transcripts filed as exhibits at trial in her credibility analysis of VC and CC because only portions of the transcripts put to VC and CC were made exhibits. TC has failed to particularize this allegation. The trial judge made no reference to portions of the transcripts that were not exhibits. She is presumed to know the law and what is impermissible to rely on in writing her reasons. Therefore, we see no merit in this submission.

[37] Finally, TC submits that the trial judge’s reference in her credibility assessment of JC to the timing of when JC had cancer is also an instance of uneven scrutiny. We disagree. The trial judge was entitled to rely on this evidence as part of her consideration of JC’s credibility and her alleged animus toward VC. JC's cancer surgery's timing, in relation to her pregnancy with VC, was connected at trial to VC’s allegation that, on several occasions, JC yelled at VC that she should have just aborted her.

IV. Disposition

[38] For the foregoing reasons, the appeal is dismissed.

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”