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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.W.M., 2020 ONCA 831
DATE: 20201222
DOCKET: C67264

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

D. W. M.
Appellant

Andrew Furgiuele and Cara Barbisan, for the appellant

Eric Taylor, for the respondent

Heard: November 27, 2020 by video conference

On appeal from the convictions entered by Justice Ian S. McMillan of the Superior Court of Justice on February 25, 2019, with reasons reported at 2019 ONSC 1130.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant appeals his convictions for sexual assault, sexual interference, invitation to sexual touching, sexual assault with a weapon, and uttering a threat to cause bodily harm, in relation to the daughter of his former common law partner. The events were alleged to have occurred on a regular basis from 1991 to 2003, when the complainant was between the ages of 5 and 16.

[2] The abuse allegedly started with sexual touching, and escalated over the years to oral sex and intercourse. It continued until the complainant moved out of her mother’s house at age 16, but was not reported to the police until 2016.

[3] There were only three witnesses at trial: the arresting officer, the complainant, and the appellant. The evidence of the arresting officer was largely peripheral, except on one issue, discussed below.

[4] The appeal focuses on three errors that the trial judge purportedly made in his assessment of the appellant’s evidence. For the reasons that follow, we dismiss the appeal.

B. The evidence at trial

[5] It is unnecessary to review all the complainant’s evidence for the purpose of these reasons. The complainant’s evidence was, on its face, detailed, explicit and candid.

[6] The complainant testified that the appellant started to touch her sexually when she was 5 years old. The abuse progressed to digital penetration around the age of eight, and then to oral sex. The complainant described how the appellant “took [her] virginity with a wooden stick” when she was 12 years old. She said he had given her a puppy as a birthday present, which she regarded as a “bribe” for what was to come. She recalled that the appellant had a wooden stick, sanded and shaped like a penis, which he lubricated and inserted into her vagina to break her hymen. After this incident, intercourse began on a regular basis. She spoke about the first such occasion in detail. She also recounted two other specific instances of intercourse, giving details as to the locations and the positions employed by the appellant.

[7] The complainant described an incident, around the age of 13, when the appellant put peanut butter on her clitoris and had her dog lick it off.

[8] The complainant testified that there were frequent acts of intercourse between the age of 12 or 13 and the age of 15, when she began menstruating. She said that she eventually got used to the appellant’s sexual advances, as “[i]t started feeling like a job.” She almost looked forward to it because the appellant would reward her with spending money and exciting toys, like a go-cart.

[9] The appellant testified. While he corroborated peripheral details of the complainant’s evidence, he denied ever having touched her in a sexually inappropriate way.

C. THE TRIAL JUDGE’S REASONS

[10] The trial judge undertook a thorough and objective review of the evidence by looking first at the complainant’s testimony and then the appellant’s. At that stage, he made no assessment of the evidence.

[11] He then turned to his analysis. He instructed himself on the application of the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt. The trial judge noted that he had to be “sure” that the appellant committed the offences, and “only after considering all of the evidence and not simply preferring one side’s version over that of the other.” He stated that since the appellant had elected to testify, making this a “she said/he said” case with demonstrably opposed versions of events, he was obliged to follow the approach established in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He also identified the potential for frailties in a case that involved events from 28 years earlier, and that depended on an adult complainant giving evidence about her childhood experiences. The trial judge cautioned himself about stereotypical thinking. He observed that “[d]emeanour, while a relevant consideration, ought not to be over-emphasized” and “[a]n apparent lack of motive to fabricate ought not to influence shifting the burden of proof to the accused.” He recognized that in the context of prosecuting a historical sexual assault case, it was important to distinguish between credibility and reliability when assessing the evidence of the complainant and the appellant.

[12] The trial judge observed that the appellant’s evidence corroborated the complainant’s evidence on peripheral matters. The trial judge noted that in the appellant’s examination-in-chief, he asserted denials of sexually inappropriate touching “in the broadest of terms” and, when asked about specific acts of sexual misconduct, “[t]he denials were brief and always limited to either ‘No’ or ‘I did not’ or ‘I did no such thing’ or ‘No, I did not’.” The trial judge remarked that the appellant “answered in the same limited and structured manner in response to allegations of impropriety put to him in cross-examination by the Crown.”

[13] The trial judge identified three aspects of the appellant’s evidence that raised concerns for him. These are discussed in the analysis section below.

[14] The trial judge gave detailed reasons for his acceptance of the complainant’s evidence. He found the complainant to be “compelling in respect to both her credibility and the reliability of her evidence. It was provided in a straightforward, forthright and unembellished manner, worthy of belief. She was honest, truthful and sincere.”

[15] He noted that the complainant’s evidence was responsive to questions put to her by Crown and defence counsel. The complainant was “candid and notably honest even when her evidence didn’t depict her in a positive moral light.” There was no inconsistency between her evidence at trial, her initial statement to police, and her evidence and cross-examination at the preliminary hearing. Nor was there evidence of partiality, malice or bias against the appellant. Some of her testimony was detailed and specific, and she was able to relate certain incidents of abuse to other events in her life.

[16] After setting out his assessment of the evidence of the appellant and the complainant, the trial judge stated his conclusion:

In considering the totality of the evidence, I have particularized my considered and reasoned acceptance, beyond a reasonable doubt, of the truth of the complainant’s conflicting credible and reliable evidence sufficient to establish the accused’s guilt beyond a reasonable doubt….

[17] He therefore convicted the appellant on the counts identified above.

D. analysis

[18] The appellant submits that the trial judge erred in his assessment of what he described as “three facets of the accused’s evidence that arouse concern.” The appellant argues that these errors led to the rejection of his evidence and that a new trial is required. We address each of them in turn.

(1) Children’s Aid Society (CAS) Investigation

[19] The complainant testified that when she was 5 or 6 years old and living on Cooper Street, she told another child that the appellant had touched her inappropriately. She said that this disclosure resulted in the school principal contacting the CAS, and the police coming to the family home, speaking to her parents, and taking her to the CAS offices to be interviewed. The complainant recalled that the appellant spoke to her before she went to the CAS. He was crying as he told her that she should not say anything about what had happened because he did not want to go to jail. She described being at the CAS premises and being afraid that she would be taken away from her family. She told the CAS that she had not been touched by her stepfather and that she had been misunderstood. The matter was subsequently dropped. The complainant testified that the majority of the sexual acts of the appellant occurred after this incident.

[20] In cross-examination concerning the CAS incident, the complainant agreed with defence counsel’s suggestion that if the event she described had happened, it would be obvious that her mother and the appellant would have been aware that the authorities were involved.

[21] The appellant was asked in examination-in-chief whether he remembered an incident involving the police and CAS when the family lived on Cooper Street and when the complainant was 5 or 6 years old. He replied: “No, I don’t recall anything like that. It could have happened, I have no idea, maybe I wasn’t there, [the complainant’s mother] never said nothing to me about it.”

[22] The Crown pursued this issue in cross-examination. The following exchange took place:

Q. … And, sir, again this morning, [appellant’s trial counsel] asked you about whether or not you recall an incident which the Children’s Aid Society as well as the police became involved at the house on Cooper Street?

A. I know nothing of that. Nothing was ever said to me about that.

Q. Okay. Your evidence was, no, I don’t recall anything like that. Maybe I wasn’t there.

A. I might have been gone because nobody mentioned anything to me about that incident.

Q. Okay. You’d agree that would be a pretty significant incident?

A. Well, I didn’t know anything about it.

Q. Okay. You’d agree though it’s a pretty serious thing when the Children’s Aid Society and police come to your house and investigate an allegation of abuse.

A. I would say.

Q. Okay. But yet you have no independent recollection of that happening?

A. I do not have any recollection of any of that happening there at the house.

[23] The appellant denied having asked the complainant to lie to the police or having threatened her.

[24] There was no independent evidence that a report had been made to the CAS. The arresting police officer testified that he had located a police report from 1995 (when the complainant would have been about 9 years old), but neither he nor any of the other witnesses gave evidence about the content of the report, and it was not made an exhibit at trial. The trial judge observed that he could not speculate whether the police report related to this incident. The complainant’s mother, who lived in British Columbia, was not a witness at trial, although the Crown had brought an application to permit her to testify by closed circuit video. The application was opposed by the defence and was dismissed.

[25] In his reasons, the trial judge identified the appellant’s evidence on this issue and said that “[i]f there was such an investigation it is inconceivable that the accused would not have any recollection of it.”

[26] The appellant submits that the trial judge made inappropriate use of the CAS evidence. Without making a finding that the CAS investigation took place, the trial judge assumed that it did occur, and used the appellant’s inability to recall the incident to discount his evidence and detract from his credibility.

[27] We do not accept this submission. Both the complainant and the appellant testified that he was a stepfather figure to her, and that they had a close, father/daughter relationship. In this context, the appellant’s explanations for not being aware of the CAS incident made no sense: “It could have happened … maybe I wasn’t there” and “I might have been gone because nobody mentioned anything to me about that incident.”

[28] Sometimes, “I don’t remember, it could have happened” is an appropriate and understandable answer for a witness. It is heard in courtrooms every day. But there are some events that are memorable whether the witness was present or not, because it was bound to come to the witness’s attention.

[29] If the police had come to the house and taken the complainant in a police car to the CAS, it stands to reason that the appellant would have heard about it, even if he were not there when it occurred. And if he had never heard about it, because it was fabricated by the complainant, the explanation he gave, “it could have happened … maybe I wasn’t there”, was completely illogical. The trial judge was entitled to treat his illogical answer as raising concern.

(2) The appellant’s denials of sexual activity

[30] The trial judge also expressed concern about the manner in which the appellant denied his wrongdoing. He stated:

His responses in that regard appeared contrived, guarded and apathetic. Nonetheless, I must be mindful that both general and specific denials, of necessity, would be lacking in detail and that the burden of proof never shifts to the accused. Also, that demeanour, while relevant, ought not to be unduly relied upon in assessing credibility. Although his denials were plausible, the delivery thereof did not constitute compelling evidence on the part of the accused that he was not guilty. The accused struggled in general with dates and details. There were a few inconsistencies such as [the complainant’s mother] not working at all or ever, but he later acknowledged that she was working when they met. These examples raised by the Crown were not, in my view, intended to mislead. Other than set out above, his evidence was generally ineffective, or at best, neutral.

[31] The appellant points out that he repeatedly denied the allegations that were put to him, giving simple answers to questions and not wavering throughout his testimony. The appellant asserts that there was no reason for the trial judge to fault the nature and delivery of his denials.

[32] We do not see the trial judge’s reasons as indicating that he made improper use of the appellant’s demeanour when assessing his credibility. The trial judge noted that denials would necessarily be lacking in detail, that the burden never shifts to the accused, and that undue reliance should not be placed on demeanour. In the trial judge’s words, the appellant’s denials were “plausible”, but they were not “compelling.” Bearing in mind the requirements of W.D., we read the trial judge as saying that the appellant’s denials were, at best, of neutral value and did not give rise to a reasonable doubt.

(3) The appellant’s failure to address specific allegations

[33] The third concern expressed by the trial judge was the appellant’s failure to address, in his evidence, two of the three specific acts of intercourse identified by the complainant.

[34] The appellant points out that he specifically denied having touched the complainant inappropriately at the house where the two acts of intercourse took place. According to the appellant, he denied all sexual misconduct and had no obligation to deny specific acts that were not put to him by either his lawyer or the Crown.

[35] This is accurate. The appellant denied any improper conduct at the location where the acts in question were alleged to have occurred. He had no obligation to respond to allegations concerning specific incidents, particularly when they were not put to him by either his own counsel or the Crown.

[36] That being said, the trial judge simply stated that “[t]he accused did not address those two allegations in his evidence by way of denial or otherwise.” That was factually correct. Beyond identifying this as something that “arouse[d] concern”, the trial judge did not expressly make any use of the evidence.

[37] This is not a case like R. v. A.K., 2020 ONCA 435. There, this court allowed an appeal because the trial judge did not rest the conviction on the complainant’s evidence – she rested it, in part, on her rejection of the accused’s evidence. This court found that the trial judge relied on factors that could not reasonably have led to the rejection of the appellant’s evidence. This court also determined that the trial judge’s reliance on those factors must have played a role in her ultimate conclusion that she did not believe the accused and that his evidence did not leave her with a reasonable doubt.

[38] In our view, the trial judge’s observations on the appellant’s failure to address two of the three specific allegations did not result in a flawed credibility analysis or an erroneous application of the principles of R. v. W.(D). The trial judge made it clear that having considered the totality of the evidence, he was convinced of the appellant’s guilt beyond a reasonable doubt because he accepted the complainant’s credible and reliable testimony.

[39] This court has acknowledged that a conviction may flow from a considered and reasoned acceptance, beyond a reasonable doubt of the complainant’s evidence: R. v. A.K., at para. 27; R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 53 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. That occurred in this case.

[40] For these reasons, the appeal is dismissed.

“G.R. Strathy C.J.O.”

“Paul Rouleau J.A.”

“S. Coroza J.A.”