Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211006 Docket: C68523

MacPherson, Roberts and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

D.B. Appellant

Counsel: Michael A. Crystal, for the appellant Natalya Odorico, for the respondent

Heard: September 28, 2021 by video conference

On appeal from the conviction entered on September 4, 2019 by Justice Martin S. James of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions for two counts of touching his stepdaughter, A.G., for a sexual purpose, contrary to s. 151 of the Criminal Code, when she was between 10 and 14 years of age, during the period 1996 to 2002. The appellant disputes all allegations. He did not testify at trial.

[2] The appellant submits the trial judge misapprehended important evidence that supported the defence, failed to reconcile material inconsistencies in the evidence, unevenly scrutinized the Crown and defence evidence, and failed to provide adequate reasons. He asks for a new trial.

[3] We do not agree that the trial judge made any reversible error.

[4] At the end of the four-day judge-alone trial, the trial judge gave detailed oral reasons in which he thoroughly reviewed the relevant evidence in accordance with the parties’ submissions and the applicable legal principles. As the trial judge was required to do, he focused his analysis on the material inconsistencies in the trial evidence. As appellant’s counsel fairly acknowledged, the trial judge was not obliged to reconcile every inconsistency. The trial judge did not unfairly scrutinize the evidence but explained, correctly in our view, why the identified inconsistencies in A.G.’s evidence did not detract from her credibility or reliability as a witness.

[5] In particular, we are not persuaded by the appellant’s principal submissions on appeal that the trial judge erred in his assessment of the evidence concerning a letter that A.G. wrote and left for her mother, L.G., to find in 2001 when she was 14 years old in which she alleged that the appellant had sexually abused her. The letter was not put into evidence; A.G. and L.G. testified about their recollections of its contents.

[6] First, that the trial judge indicated that the letter was found in A.G.’s desk drawer, which is where A.G. said she left it, rather than in her dresser drawer, as her mother testified, is of no moment. The trial judge was alive to the defence theory that A.G. made false allegations and wanted her mother to find the letter so that the appellant would be removed from their home. And this is exactly what ensued: the mother found and read the letter, confronted the appellant, and the appellant left the house until the mother permitted him several weeks later to return.

[7] Further, we do not accept that the trial judge applied inappropriate stereotyping to the mother’s emotional reaction in reading A.G.’s allegations. The trial judge determined that the mother could not remember the same details about the letter’s contents that A.G. was able to recount because, in part, she was startled and overwhelmed by them. The trial judge’s assessment was reasonable and reflected the mother’s evidence that she was “devastated” by the letter that contained allegations about her partner sexually abusing her daughter.

[8] In their essence, the appellant’s submissions amount to a request that this court redo the trial judge’s findings of fact and reweigh the trial evidence. That is not the function of this court. We see no error that warrants appellate intervention.

Disposition

[9] For these reasons, we dismiss the appeal.

“J.C. MacPherson J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”