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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. D.G., 2020 ONCA 671

DATE: 20201028

DOCKET: C66278

Rouleau, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Jefferey Couse, for the appellant

Tanya Kranjc, for the respondent

Heard: October 19, 2020 by video conference

On appeal from the convictions entered on June 11, 2018 by Justice Louise L. Gauthier of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of two counts of sexual interference and two counts of assault against his stepson. The appellant was also found guilty on two counts of sexual assault for which stays were entered. The appellant was sentenced to 6 years imprisonment.

[2] The complainant was a child aged six to nine years at the time of the alleged offences. When he was he was a young teenager, he disclosed that the appellant had sexually and physically abused him. He was 16 years old at the time of trial. He testified to two instances of sexual abuse. The first instance occurred in his bedroom when the appellant stroked his penis and sodomized him. The second occurred in a car inside the garage when he was again sodomized.

[3] In 2015, the same year that the allegations were made and four years after the relationship between the appellant and the complainant’s mother ended, the appellant sent an apology to the complainant over Facebook for what had happened in the past. The Facebook messages were not available at trial, but the appellant and the complainant referred to them.

[4] The appellant alleges that, in convicting him, the trial judge erred by:

1. misapprehending the appellant’s explanation for the Facebook apology;

2. reversing the onus of proof; and

3. failing to resolve inconsistencies in the complainant’s evidence.

The apology

[5] The appellant testified that he saw his photo on the Facebook page of the complainant’s mother. He wanted it deleted and began arguing with her. She blocked him. The appellant then turned to the complainant on Facebook and requested that he tell his mother to delete the photo. In the same series of messages, the appellant apologized to the complainant. He testified that the apology was for the offensive things he said to the complainant’s mother about her deceased children and for having spoken to the complainant in a “higher tone of voice.”

[6] The trial judge did not believe the appellant’s explanation for the apology. She found it “incomprehensible” that he was apologizing for the tone of his voice some four or five years earlier. The appellant submits that this was a misapprehension because he was also apologizing for the offensive things he said about the deceased children. The appellant argues that this misapprehension was integral to the trial judge’s reasoning since it effectively turned the apology into an admission of guilt.

[7] We do not agree. It was open to the trial judge to disbelieve the appellant. Her rejection of his explanation was in the context of her credibility assessment and she did not link it to an admission of guilt.

Onus of proof

[8] The appellant submits that the trial judge did not apply R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742and consequently reversed the burden of proof. He relies on the highlighted portion of the following paragraph from the trial judge’s reasons:

For the above reasons, I reject the accused’s evidence. It does not raise a reasonable doubt. Likewise, the balance of the evidence, including the frailties of [the complainant’s] evidence, do not leave me with a reasonable doubt that the accused committed the offences as charged. [Emphasis added.]

[9] The appellant submits that the trial judge was placing an onus on him to disprove his guilt by deciding first that the appellant’s guilt had been proved beyond a reasonable doubt and then assessing the inconsistencies. Again, we disagree. While the trial judge did not refer to W.D. directly, she did refer to its three component parts. In addition, while we acknowledge that the above paragraph could have been better worded, the reasons read as a whole make it clear that the trial judge was aware of the burden of proof and did not place an onus on the appellant. Also, in convicting the appellant, she added:

In conclusion, after having considered all the evidence, I am satisfied the Crown has proven its case beyond a reasonable doubt….

Failure to resolve inconsistencies

[10] The appellant submits that the trial judge failed to resolve the inconsistencies in the complainant’s evidence. He points to two aspects: whether the bedroom door was locked in connection with the first assault; and whether the back seat of the car was folded down in connection with the second.

[11] The trial judge is not required to resolve all inconsistencies in the evidence. She described these matters as peripheral details. She accepted the complainant’s evidence as to what the appellant did and concluded that this satisfied her beyond a reasonable doubt. That conclusion was available to her on the evidence.

Conclusion

[12] For these reasons, the appeal on conviction is dismissed. The appellant withdrew the sentence appeal.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“I.V.B. Nordheimer J.A.”