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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210121 DOCKET: C64838

Juriansz, Tulloch and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

S.H. Appellant

Counsel: Howard Krongold, for the appellant Michael Dunn, for the respondent

Heard: January 15, 2021 by videoconference

On appeal from the convictions entered by Justice W. Danial Newton of the Superior Court of Justice on July 8, 2016, with reasons reported at 2016 ONSC 4492.

REASONS FOR DECISION

[1] The trial judge convicted the appellant of sexual interference, contrary to s. 151 of the Criminal Code, and sexual assault, contrary to s. 271 of the Criminal Code. The appellant was found to have committed these offences against the complainant, his step-daughter, on an almost daily basis, over a number of years.

[2] At the trial, the complainant testified about the alleged sexual abuse. She also testified that after she told her mother about the abuse, the appellant came into her room and apologized to her.

[3] The complainant’s mother testified that after the complainant told her of the sexual abuse, she confronted the appellant, who did not deny the allegations but said he could not remember, perhaps because he had consumed drugs. She testified that she then heard the appellant apologize to the complainant, and that the appellant left the family home the next day.

[4] In his testimony, the appellant denied the alleged sexual acts and denied apologizing to the complainant. He said that he left the house because the complainant’s mother admitted that she was having an affair. The appellant suggested that the complainant’s allegations were motivated by his response to the complainant being caught shoplifting, and that the complainant’s prior complaints to her friends had been motivated by the negative influence of those friends, and her desire to “fit in”.

[5] In his decision finding the appellant guilty, the trial judge accurately set out the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, for the application of the reasonable doubt standard in credibility cases. He identified the three stages in the W.(D.) analysis that are customarily described, including by citing the formula expressed in W.(D.), at p. 758:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[6] In the analysis section of his reasons for decision, the trial judge explained that he did not accept the appellant’s evidence, and that he was satisfied of the appellant’s guilt beyond a reasonable doubt based on the evidence he did accept, namely the testimony of the complainant and her mother. These holdings address the first and third steps in the W.(D.) analysis. In describing his analysis, the trial judge did not expressly address the second stage of the W.(D.) analysis.

[7] The appellant urges us to find that despite citing the principles correctly, the trial judge misapplied the law by failing to consider the second stage of the W.(D.) analysis. He therefore asks that his convictions be set aside and that a new trial be ordered.

[8] Notwithstanding that the trial judge did not advert expressly in his analysis to the second stage of W.(D.), we are not persuaded that the trial judge committed this error.

[9] It is telling that the trial judge did not simply reproduce the W.(D.) formula in his decision. He said that he was obliged to consider each step in his reasoning, and, commendably, explained what each of those steps entails. This included a two paragraph explanation of how the second stage of the W.(D.) analysis was to be conducted, culminating in a self-direction that even if he does not believe the accused, the trial judge must consider the accused’s evidence in the context of the evidence as a whole to determine whether he may nonetheless have a reasonable doubt as to the accused’s guilt.

[10] The trial judge’s detailed examination of the law is instructive on the ground of appeal before us. In order to accept that the trial judge failed to apply the second stage of the W.(D.) analysis, we would have to infer that the trial judge somehow failed to undertake the very analysis that he not only said he would undertake but explained in appreciable detail. A review of the reasons for decision does not support this conclusion. When the decision is read as a whole, it can be inferred that the trial judge rejected the appellant’s exculpatory testimony in its entirety, leaving that testimony incapable of raising a reasonable doubt.

[11] This can be seen most clearly in the trial judge’s treatment of the appellant’s explanation for his abrupt departure from the family home. Although the trial judge did not say so expressly, he clearly concluded that this testimony was contrived. That the trial judge reached that conclusion is apparent from the trial judge’s explanation that this testimony so undercut the appellant’s credibility that his denial of the assaults could not be accepted.

[12] The trial judge then moved on to the appellant’s testimony about the influence of the complainant’s friends on her prior complaints, and said, “I also reject [that] assertion” (emphasis added). Here, “also” is clearly a reference to the trial judge’s finding, made immediately prior, that he did “not accept” the appellant’s denial that he assaulted the complainant. It follows, from the use of “also” in reference to the friends’ influence, that the trial judge rejected the appellant’s exculpatory denial. Put otherwise, the trial judge not only found that he did not affirmatively believe the appellant’s denial, he rejected it in its entirety leaving it incapable of raising a reasonable doubt.

[13] To be sure, it would have been preferable for the trial judge to expressly address each of the three W.(D.) stages in his analysis. Had he done so, it is unlikely that the decision would have been appealed. Had it been appealed, it would not have been necessary to provide the close analysis just undertaken to determine whether an error occurred. Having undertaken that exercise, however, we are not persuaded that the law was misapplied.

[14] The appeal is therefore dismissed.

“R.G. Juriansz J.A.”

“M. Tulloch J.A.”

“David M. Paciocco J.A.”