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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Date: 2021-04-13 Docket: C67000 Judges: Watt, Benotto and Nordheimer JJ.A.
Parties
BETWEEN
Her Majesty the Queen Respondent
and
Clayton Freamo Appellant
Counsel: Daniel Howard, for the appellant Natalya Odorico, for the respondent
Heard: March 23, 2021 by video conference
On Appeal From: the conviction entered on January 2, 2019 by Justice Martin S. James of the Superior Court of Justice.
Reasons for Decision
[1] The appellant’s wife operated a daycare in their home. The appellant was charged with seven counts of sexual offences in relation to two complainants who attended the daycare. The events giving rise to the charges took place between 2004 and 2010 in connection with the complainant “J.R.” and between 2005 and 2008 for the complainant “S.L”. Both complainants attended the daycare. The trial judge convicted the appellant on one count of sexual interference and one count of sexual assault in relation to J.R. and entered acquittals on the other two charges in relation to J.R. and all three in connection with S.L. The sexual assault charge was conditionally stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. The appellant appeals his sexual interference conviction, alleging a faulty credibility analysis by the trial judge.
[2] In a videotaped interview, admitted at trial under s. 715.1 of the Criminal Code without objection, J.R. stated that on one occasion the appellant forced her to fellate him. He was convicted of the incident which occurred in the “backroom” which was also a laundry room. In total, she stated that the assaults happened anywhere from 2 to 20 times. She said that after assaulting her he would usually sit naked on the couch and watch television for half an hour.
[3] The appellant denied all the allegations.
[4] The trial judge found it “highly improbable” that the appellant would sit naked on the couch after assaulting J.R. but believed her evidence about the backroom incident.
[5] The appellant submits that the trial judge incorrectly approached the credibility analysis as a contest between his evidence and that of J.R. He points to two comments made by the trial judge: (i) that the appellant’s evidence was “stacked against” J.R.’s; and (ii) that the evidence of the appellant was “weighed against” that of J.R.
[6] We do not agree.
[7] First, the impugned comments should not be extracted from the words surrounding them. The entire paragraphs are as follows.
[8] With respect to “stacked against”:
When Mr. Freamo’s denial is stacked against J.R.’s evidence that there was an occasion when Mr. Freamo put his penis in her mouth, I am satisfied that J.R.’s evidence is sufficient to displace the presumption of innocence, and I am not left in a state of reasonable doubt that Mr. Freamo committed the offence of sexual interference pursuant to s. 151 of the Criminal Code. I found J.R.’s evidence of the other incidents to be less certain. For example, during the police interview when J.R. referred to an incident when she says Mr. Freamo asked her to touch herself, the recording is unclear. The interviewer referred to her vagina but there was no unequivocal confirmation by J.R. [Emphasis added.]
[9] With respect to “weighed against”:
I am not prepared to find that the rejection of this piece of evidence makes the rest of J.R.’s evidence unreliable or untrustworthy. J.R. was very specific in recalling an incident that involved Mr. Freamo putting his penis in her mouth. She seems certain that it was Mr. Freamo who did this. I accept this evidence. I have weighed the evidence of J.R. against the evidence of Mr. Freamo. I acknowledge that Mr. Freamo’s defence is a general denial and it must necessarily be lacking in detail. I am also cognizant that as I mentioned before, proof of guilt beyond a reasonable doubt requires more than a credibility contest. [Emphasis added.]
[10] The trial judge’s statements following the impugned language demonstrates a correct understanding and application of the burden of proof.
[11] Second, these words must also be considered in the context of the reasons as a whole. The trial judge repeatedly correctly instructed himself on the proper approach to a credibility analysis. He considered the counts individually. He explained why he had doubts on some of the counts. For example, he explained that he had a reasonable doubt on J.R.’s evidence with respect to the fact that the appellant told her to touch herself, because the recording of her police interview was ambiguous on those other counts, and there was no follow-up by Crown counsel during J.R.’s in-court testimony. He further explained why his doubt on some of her statements did not undermine his belief on the backroom incident. He acquitted on all of the counts with respect to S.L. The trial judge applied a correct approach to the credibility analysis.
[12] The appellant also submits that the trial judge’s doubt about the allegation that the appellant sat naked on the couch is inconsistent with his belief about the backroom incident. The appellant says that all the trial judge said was that the couch incidents were “highly improbable” and more was required to explain the inconsistency. Again, we do not agree. The trial judge discussed this with defence counsel during submissions.
[13] Defence counsel said:
[T]hat just sounds [like] completely illogical behaviour that is so risky that it would defy credulity that he would be sitting for long periods of his time naked on [the] couch and when we know that his teenage son and daughter reside there, his wife resides there … that undermines the credibility and reliability of [J.R.]
[14] The trial judge then put this to Crown counsel:
You may agree that it is improbable that the assailant would sit naked on the couch in the living room where the T.V. is for half an hour or so after the incident. It strikes me as improbable.
[15] The appellant submits that the fact that J.R. was not believed about the sitting naked on the couch should have formed part of his credibility analysis with respect to the backroom.
[16] The trial judge clearly had a reasonable doubt about the evidence with respect to sitting naked on the couch. However, he believed the evidence regarding the backroom incident. This does not reflect an inconsistency. On the contrary, it reflects an intention to assess the evidence carefully. This – together with the acquittals – provides additional confidence in the trial judge’s ultimate conclusion as to guilt on the two counts.
[17] The appeal is dismissed.
“David Watt J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”