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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Bulic, 2020 ONCA 845

DATE: 20201231

DOCKET: C66246

van Rensburg, Benotto and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damir Bulic

Appellant

Janani Shanmuganathan and Justin Nasseri, for the appellant

Rebecca Schwartz, for the respondent

Heard: December 4, 2020 by video conference

On appeal from the conviction entered by Justice R. Dan Cornell of the Superior Court of Justice on July 16, 2018, and from the sentence imposed on May 15, 2019, with reasons reported at 2019 ONSC 220.

REASONS FOR DECISION

[1] The appellant was the complainant’s grade seven French teacher in 2010-2011. The complainant alleged that at the end of grade seven, when he was 12 years old, the appellant engaged in indecent acts in his presence including masturbation and simulated sex with various objects and inviting the complainant to engage in a sex act. When he was 19, the complainant disclosed these events to his girlfriend, his mother and the police. The trial judge convicted the appellant of four counts of committing an indecent act and one count of sexual invitation to a person under 16 years of age and sentenced him to two years less a day. The appellant appeals the convictions and sentence.

[2] For the reasons that follow, we dismiss the conviction and sentence appeal.

The conviction

[3] The appellant raises three grounds of appeal:

i. that the trial judge failed to properly scrutinize the complainant’s evidence;

ii. that the trial judge did not address the complainant’s motive to fabricate; and

iii. that the trial judge misapplied the burden of proof.

[4] The appellant submits that the complainant’s evidence was incredible and unreliable and that the trial judge did not properly address it. The complainant had lied repeatedly to his mother and the police. The appellant submits that the complainant also lied while in court. For example: when the complainant was in grade nine, the complainant lied to the police when he said there had been no sexual contact between him and the appellant; the complainant’s evidence on a vehicle accident in June 2011 changed several times regarding who had been driving and what the complainant and the appellant had been doing at the time of the accident; and there were inconsistencies between the complainant’s testimony and the testimony of the complainant’s friend on the contents of a video.

[5] The trial judge accepted the complainant’s explanation that he had lied to his mother and to the police because he was embarrassed by the appellant’s conduct and was afraid that he would be in trouble. Also, by the time the complainant testified at trial, more than six years had passed. The trial judge concluded that even though some details of his evidence changed, the complainant’s evidence about the essential elements of the offences did not. He found that the variations in the complainant’s evidence did not detract from his credibility or reliability.

[6] The trial judge’s credibility findings are entitled to deference: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. He was well aware of the inconsistencies, addressed them and accepted the complainant’s evidence. We see no reason to interfere.

[7] The appellant further submits that the trial judge failed to assess the complainant’s motive to fabricate in his reasons. The appellant submits that the complainant’s mother disliked the appellant, and either the complainant was making the allegations to improve his relationship with his mother, or the mother encouraged false statements to the police. The appellant submits that it was an error for the trial judge not to address this theory in his reasons.

[8] The trial judge did not fail to consider the potential motive to fabricate. When defence counsel raised the theory in closing submissions, the trial judge questioned the relevance of the mother’s credibility. The trial judge agreed that that the mother had previously harboured animus toward the appellant but noted that there was no evidence that it continued. After reviewing the evidence with defence counsel, the trial judge concluded that the complainant’s mother was not coaching the complainant about what to tell the police or disclose, she was instead urging the complainant to tell the truth about what had happened.

[9] The trial judge clearly found no evidence to support a motive to fabricate. This conclusion was open to him on the evidence and we do not accept that it was an error in principle not to address the issue in his reasons.

[10] Finally, the appellant submits that the trial judge misapplied the burden of proof by essentially requiring the appellant to dismantle the essential elements of the complainant’s allegations. He submits that the trial judge accepted the complainant’s evidence uncritically. We do not agree. As we have set out above, the trial judge was aware of the issues the appellant now raises. He nonetheless accepted the evidence of the complainant. It was open to him to do so.

The sentence

[11] The appellant appeals his sentence, alleging that the trial judge determined the sentence without reference to the appellant’s mental health.

[12] The Crown sought a three-year sentence, while the appellant sought a sentence of nine months. The aggravating factors included a breach of trust, and that there were multiple incidents and extensive grooming behaviour. The mitigating factors were that the appellant did not have a criminal record, that he had support from family and friends, and his history of employment as a teacher since 1999, which was has ended because of the convictions. The victim impact statement from the complainant’s mother indicated that these offences had serious physical, emotional, and financial impacts on the complainant and his family. The trial judge also commented on the position of trust that the appellant was in as the complainant’s teacher and made a note of case law that emphasized the message that must be sent to offenders in that position.

[13] The trial judge did address the appellant’s mental health issues. He concluded that the issues appeared to be a result of his criminal conduct and not a result of a pre-existing condition. Further, “medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence”: R v. Heron, 2017 ONCA 441, at para. 25.

[14] The trial judge sentenced the appellant to two years less a day imprisonment and imposed a three-year period of probation and various ancillary orders, including: a weapons prohibition, DNA order, sex offender registration, non-communication order, and a prohibition on being in certain locations or seeking employment where he would be in a position or trust or authority toward persons under 16 years of age.

[15] The trial judge imposed a sentence between the length proposed by defence and Crown counsel. It was a fit sentence, and we see no error in principle that would lead us to interfere.

[16] The conviction appeal is dismissed. Leave to appeal sentence is allowed but the sentence appeal is dismissed.

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

“J.A. Thorburn J.A.”