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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211012 DOCKET: C67341

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

S.F. Appellant

Counsel: Nate Jackson, for the appellant Andrew Hotke, for the respondent

Heard and released orally: October 6, 2021 by video conference

On appeal from the conviction entered on May 6, 2019 by Justice E. B. Minden of the Superior Court of Justice.

REASONS FOR DECISION

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was found guilty of sexual assault and sexual interference. A conviction was entered on the count of sexual interference. A stay on the sexual assault. The trial judge imposed a sentence of imprisonment of six and one-half years.

[2] The appellant appeals his conviction.

The Background Facts

[3] The appellant is the biological father of the complainant. For the first eight years of the complainant’s life, no real contact between the appellant and the complainant occurred despite an agreement that permitted the appellant access on weekends.

[4] During a period of about eighteen months after the complainant turned eight, the appellant exercised his right of access. In large measure, this meant that the complainant spent several weekends at the home in which the appellant lived with his wife and daughter. Their home was some distance away from where the complainant resided with his mother, the appellant’s former partner.

[5] The complainant gave evidence of three discrete occasions on which he was sexually assaulted by the appellant. Two occurred in the appellant’s home and the third in the appellant’s truck. The assaults continued until the complainant’s tenth birthday when the access visits terminated. The reasons for the cessation of the visits varied. The complainant gave evidence that on the ride home with the appellant on the weekend of his tenth birthday, he warned the appellant that if the abuse did not stop, he would tell somebody about that abuse. The appellant claimed that the visits concluded because of the constant bickering between the complainant’s mother and himself.

[6] The complainant first disclosed the abuse to a close friend when he was in grade nine, then to his girlfriend the summer after he had completed grade ten. In 2016, at the suggestion of his close friend to whom he had first disclosed, he told his grandmother who relayed what he said to the complainant’s mother. The complainant’s mother contacted the police and the investigation began, leading to the charges on which the appellant was tried.

The Grounds of Appeal

[7] The appellant advances three grounds of appeal. He submits that the trial judge erred:

i. by making impermissible use of the complainant’s prior consistent statements to confirm the truth of the complainant’s sworn allegations;

ii. by misapprehending the evidence of the complainant concerning the disclosure of his allegation to a high school counsellor; and

iii. by applying an uneven standard of scrutiny to the evidence of the complainant, on one hand, and the appellant, on the other.

[8] In our view none of these grounds can prevail.

The Prior Consistent Statements

[9] First, prior consistent statements.

[10] At trial, the Crown adduced evidence of three separate disclosures by the complainant. The sources of this evidence were:

i. the complainant himself;

ii. a close friend and fellow student of the complainant.

iii. the complainant’s grandmother; and

iv. the complainant’s former girlfriend, as well as fellow student.

[11] The questions asked and answers given by the complainant, his close friend and fellow grade-nine student, and his grandmother were focussed upon the fact of and circumstances surrounding the disclosure, not the content of what was disclosed. The former girlfriend did not testify. A transcript of her police statement was entered on consent as an exhibit at trial. There, she confirmed the timing and circumstances of the disclosure and made one brief reference to the nature of the conduct alleged, but not the details of where and when it occurred.

[12] The trial Crown made it clear in examination of the disclosure witnesses that they did not seek any details of the nature of the abuse, only the circumstances of the disclosure.

[13] The appellant does not suggest, nor could he, that this disclosure evidence was inadmissible at trial. His complaint is that the trial judge made improper use of the evidence to confirm the complainant’s account of relevant events and, by reason of consistency, enhance the reliability of his evidence.

[14] This ground of appeal fails for essentially three reasons.

[15] In his comprehensive reasons for judgment, the trial judge correctly articulated the rule governing the admissibility of evidence of prior consistent statements, their exceptions, and the limited use, as a trier of fact, he could make of that evidence. The trial judge made it clear that the statements could not be used to prove the truth of their contents. or to enhance the credibility of the complainant or the reliability of his testimony. Said differently, the trial judge approached this evidence on the basis of the proper legal principles.

[16] A fair reading of the trial judge’s reasons reveals no departure from these applicable legal principles. Nothing said or left unsaid by the trial judge displays any improper use of this evidence.

[17] Finally, unlike some cases involving disclosure of allegations of sexual misconduct, this was not a case in which the details of the disclosure were elicited in evidence. In such cases, especially with a lay trier of fact, left untutored about limitations on the use of this evidence, the risk of misuse may be enhanced. Not so here with a trier of fact schooled in permitted and prohibited uses and faithful to precedent.

Misapprehension of Evidence

[18] The second ground of appeal alleges that the trial judge misapprehended the complainant’s evidence about whether he disclosed the sexual assault by the appellant to a counsellor at school. There were no school records of any such disclosure.

[19] At the preliminary inquiry, the complainant testified that he had spoken to a counsellor at school about being sexually abused. In cross-examination at trial, his answer was that he thought he had spoken to a counsellor “for a brief little time” at school. Cross-examining counsel then suggested that the complainant made no such complaint. The complainant explained: “um, like I said I can’t tell you at this point, but I stand by what I said in this - in the transcript here, so I would have, yes.”

[20] In his reasons for judgment, the trial judge concluded that the complainant provided his then best current memory on the disclosure issue at the preliminary inquiry, but that at trial he was no longer certain about the issue. The trial judge then went on to say, that even if the complainant did speak to a counsellor at school, the absence of such records did not give rise to any credibility or reliability concerns.

[21] We are not satisfied, that read in their entirety, the reasons of the trial judge reflect any misapprehension of evidence. At trial, the complainant could not recall whether he had told a school counsellor about the abuse. That was his memory at trial. He accepted that he had said at the preliminary inquiry that he had spoken to a counsellor. But at trial he could not recall one way or the other whether he had, in fact, done so. The trial judge’s conclusion on this issue involved no misapprehension of the evidence.

[22] In any event, the trial judge went on to determine whether the absence of a record of any disclosure to a counsellor, contrary to the complainant’s recollection of disclosure at the preliminary inquiry, would have any impact on the credibility of the complainant or the reliability of his evidence. The trial judge concluded that it had no such effect on his assessment.

[23] This ground of appeal fails.

Uneven Scrutiny

[24] The final ground of appeal alleges that the trial judge applied a higher or stricter level of scrutiny to the evidence of the defence than he applied to the evidence adduced by the Crown.

[25] As this court has frequently pointed out, this is an argument that is difficult to advance successfully. It is not established by the simple fact that the judge accepted the evidence of some witnesses, but not the testimony of others. Or made some findings of fact, but not others. Or could have made different findings of fact or drawn different inferences. It is often, as here, little more than a thinly veiled attempt to relitigate factual determinations made at trial in the absence of any errors in principle, palpable and overriding errors in findings of fact, or misapprehensions of evidence. The thorough reasons of the trial judge afford no basis for any claim of uneven scrutiny.

[26] In oral argument, the appellant alleged that the trial judge erred in characterizing the appellant’s testimony in the following terms:

For much of his testimony I found S.F. to be a scripted, stubborn, intransigent and unimpressive witness. At times he was careless, if not reckless, with the truth. It seemed to me, that he repeatedly attempted to act as an advocate in his own cause rather than as a witness sincerely trying to be accurate and honest.

[27] The appellant specifically objects to the trial judge’s reference to him as behaving in the witness stand as an “advocate in his own cause”. It is the obligation of a trial judge to consider, among other things, the manner in which witnesses, including the accused, give their evidence. We read the reasons of the trial judge as indicating that he viewed the appellant as more interested in advancing his own position than answering the questions put accurately and honestly. There is nothing wrong with what the trial judge said.

[28] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David Watt J.A.”